Kenseth v. DEAN HEALTH PLAN, INC.

In the

United States Court of Appeals
For the Seventh Circuit

No. 08-3219

D EBORAH A. K ENSETH,
Plaintiff-Appellant,
v.

D EAN H EALTH P LAN, INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08 C 1—Barbara B. Crabb, Judge.

A RGUED F EBRUARY 27, 2009—D ECIDED JUNE 28, 2010

Before M ANION, R OVNER and T INDER, Circuit Judges.
R OVNER, Circuit Judge. Eighteen years after Deborah
Kenseth underwent vertical gastric banding to treat her
morbid obesity, her physician advised her to undergo a
second surgical procedure to resolve the severe acid
reflux and related maladies she was experiencing as
complications of the original surgery. Before having
the corrective surgery, Kenseth telephoned her health
maintenance organization’s customer service line to
2 No. 08-3219

determine whether the surgery would be covered by her
insurance. She was advised that it would be, subject to a
$300 copayment. But the day after she had the surgery,
her HMO denied coverage, relying on provisions in the
insurance plan deeming surgery and hospitalization
for morbid obesity to be non-covered, along with any
services or supplies related to such non-covered treat-
ment. Kenseth’s internal grievance was unsuccessful,
leaving her responsible for medical bills totaling more
than $77,000.
Kenseth filed suit against her HMO, Dean Health
Plan, pursuant to the Employment Retirement Income
Security Act of 1974, 29 U.S.C. §§ 1001, et seq. (“ERISA”),
seeking relief under theories of equitable estoppel and
breach of fiduciary duty as well as state law. The district
court granted summary judgment to Dean. Kenseth v.
Dean Health Plan, Inc., 568 F. Supp. 2d 1013 (W.D. Wis.
2008).
We vacate in part and remand. The facts support a
finding that Dean breached its fiduciary duty to Kenseth
by providing her with a summary of her insurance
benefits that was less than clear as to coverage for her
surgery, by inviting her to call its customer service repre-
sentative with questions about coverage but failing to
inform her that whatever the customer service repre-
sentative told her did not bind Dean, and by failing to
advise her what alternative channel she could pursue in
order to obtain a definitive determination of coverage
in advance of her surgery. However, ERISA authorizes
only equitable relief in cases where an individual is
No. 08-3219 3

seeking relief on her own behalf for a breach of fiduciary
duty. It remains to be seen whether any relief that Kenseth
is seeking falls within the realm of equitable relief that
ERISA authorizes.

I.
Kenseth is insured through her employer. She was
hired by Highsmith, Inc., headquartered in Ft. Atkinson,
Wisconsin, in May of 1996. The company is a distributor
of furniture, equipment, and supplies to libraries through-
out the United States and abroad. It has more than
200 employees. Highsmith sponsored a group health
insurance plan for its eligible employees, and it con-
tracted with Dean to provide the insurance. Kenseth
elected to participate in Highsmith’s insurance plan, and
her coverage under Dean’s group policy began on
August 1, 1996.
Dean Health System is headquartered in Madison,
Wisconsin, and bills itself as one of the largest integrated
healthcare delivery systems in the United States. It oper-
ates an extensive network of clinics, the first of which
was established more than 100 years ago, throughout
Dane, Rock, and Walworth Counties in southern Wis-
consin. Dean Health Plan/Dean Health Insurance, Inc., is
the insurance services subsidiary of Dean Health System
and provides insurance to Highsmith’s employees. Dean
Health Plan, which we shall refer to simply as Dean, is
one of the largest HMOs in the Midwest.
In 1987, years before she was employed with Highsmith
and enrolled in the Dean Health Plan, Kenseth had opted
4 No. 08-3219

to undergo a surgical procedure known as vertical
banded gastroplasty (“VBG”) in order to help her lose
weight. VBG, often colloquially referred to as “stomach-
stapling,” employs surgical staples to divide the stomach
into two parts, creating a small pouch or neo-stomach
at the entrance to the stomach which is connected to
the remainder of the stomach by a narrow outlet; a poly-
propylene band is placed around the outlet to keep it
from enlarging over time. Food fills the neo-stomach
quickly, and proceeds through the outlet into the remain-
der of the stomach slowly, thus causing the patient to
both feel full sooner and to continue to feel full for a
longer period of time. The procedure achieved its
intended effect with Kenseth, helping her to both lose
more than 120 pounds and keep that weight off. The
procedure was paid for by her employer’s health plan.
Eventually, however, Kenseth experienced complica-
tions from the VBG. The outlet connecting the neo-stomach
with the remainder of the stomach began to shrink and
harden, a condition known as gastric stenosis. The
stenosis in turn caused Kenseth to experience a variety
of ailments beginning in 2001. These included severe
acid reflux, which kept her awake at night and caused her
to vomit repeatedly during the day, erosion of the esopha-
gus, several bouts of pneumonia, and severe hair loss.
By 2001, of course, Kenseth was working for Highsmith
and was insured under the Dean group health insurance
policy. The benefits available to Highsmith employees
under that policy were set forth in a document entitled
the Group Member Certificate and Benefit Summary (the
No. 08-3219 5

“Certificate”). The Certificate is revised annually to
reflect the benefits available in each calendar year, and
among other things it describes both covered and non-
covered services. The Certificate identifies Dean itself
as the “claims administrator” with “the discretionary
authority to determine eligibility for benefits and to
construe the terms of this Certificate.” R. 34-6 at 29
(2005). “Any such determination or construction shall
be final and binding on all parties unless arbitrary and
capricious.” R. 34-6 at 29 (2005).
Among the non-covered services set forth in the Certifi-
cates for the 2004 and 2005 calendar years were “[a]ny
surgical treatment or hospitalization for the treatment
of morbid obesity.” R. 42 ¶ 8; see R. 34-6 at 13, 20 (2005).1
In both years, the Certificate’s list of “[g]eneral [e]xclu-
sions and limitations” also included “[s]ervices and/or
supplies related to a non-covered benefit or service,
denied referral or prior authorization, or denied admis-
sion.” R. 42 ¶ 9; see R. 34-6 at 22 (2005). In 2006, the lan-
guage of this exclusion was revised to read “[s]ervices
or supplies for, or in connection with, a non-covered
procedure or service, including complications; a denied
referral or prior authorization; or a denied admission.”
42 ¶ 10; see R. 34-6 at 77 (2006) (emphasis ours).
The Certificate encourages plan participants with
questions about its provisions to call Dean’s customer

1
The 2005 Certificate also excluded coverage for “[w]eight
loss program s[,] includ ing dietary and nu tritional
treatment . . . .” R. 42 ¶ 9; see R. 34-6 at 16.
6 No. 08-3219

service department. On the third page of the 2005 Certifi-
cate, under the heading “Important Information,” the
reader is advised to make such a call “[f]or detailed
information about the Dean Health Plan.” R. 34-6 at 3.
Eight pages later, at the outset of the Certificate’s sum-
mary of “Specific Benefit Provisions,” a text box in bold
lettering states, “If you are unsure if a service will be
covered, please call the Customer Service Department at
1-608-828-1301 or 1-800-279-1301 prior to having the
service performed.” R. 34-6 at 11. No other means of
ascertaining coverage is identified for services rendered
by an in-plan provider. Such a procedure is identified
for services sought on a non-emergency basis from a
provider who is not part of the Dean network: a plan
member’s primary care physician must submit a written
referral request to Dean’s managed care division in ad-
vance of service being provided, and after the request,
the member is notified as to whether the out-of-plan
referral has been approved. R. 34-6 at 7-8.
In September 2004, Kenseth underwent an endoscopic
procedure during which a balloon was used to dilate the
outlet from her neo-stomach, which had become ob-
structed. The paperwork generated in connection with
this procedure noted the connection between the obstruc-
tion of the outlet and Kenseth’s VBG. The gastro-
enterologist who performed the procedure, Dr. Abigail
Christiansen, observed in her post-operative notes that
Kenseth had undergone a VBG some seventeen and one-
half years earlier and identified “[g]astric outlet obstruc-
tion from the vertical banded gastroplasty” as her medical
“impression.” R. 34 ¶ 5; R. 34-5 at 32. The hospital’s
No. 08-3219 7

“Outpatient Coding Clinical Summary” for the procedure
also listed “acquired hypertrophic pyloric stenosis” as
one of the doctor’s secondary diagnoses, R. 34-5 at 29, and
stenosis of the gastric outlet is a known complication
of VBG. Interestingly, however, Dean paid for the proce-
dure, notwithstanding the fact that surgical treatment
for morbid obesity was a non-covered service and
“services . . . related to a non-covered service” were also
excluded from coverage by the terms of the 2004 Certifi-
cate.2 The 2004 procedure evidently resolved the obstruc-
tion of Kenseth’s gastric outlet for a period of time, but
eventually the problem recurred. Ultimately, Kenseth

2
Kenseth submitted medical records suggesting that she had
undergone an identical procedure in December 2001, and was
treated in a hospital emergency room in April 2002 for symp-
toms (including pneumonia and hair loss) apparently stemming
from the VBG, and that Dean paid for these medical services
as well. R. 34 ¶ 3; R. 34-2 ¶¶ 4-5; R. 34-5 at 1 ¶¶ 2-3; R. 34-5 at 3-
28. The district court did not consider Dean’s handling of
these additional services in view of the fact that Kenseth did not
propose facts detailing what these records reveal, nor had
she submitted the affidavit or testimony of an appropriate
medical professional to interpret her medical records and to
explain the causes and significance of her medical condition at
the time of treatment. 568 F. Supp. 2d at 1015-16. By contrast, the
court was evidently satisfied that the proposed facts and the
underlying records concerning the September 2004 procedure
were sufficient, and so the court took notice of that procedure.
Id. at 1015. Dean’s counsel agreed at oral argument before
this court that the September 2004 procedure was properly
taken into consideration.
8 No. 08-3219

was referred to a bariatric surgeon, Dr. Paul E.
Heupenbecker, to assess longer-term solutions to the
problem.
Kenseth consulted with Dr. Huepenbecker on
November 9, 2005. Dr. Huenpenbecker works at a Dean-
owned clinic. Dr. Huepenbecker advised Kenseth to
undergo what is known as a Roux-en-Y gastric bypass
procedure as a longer-term solution to the complications
she was experiencing. The doctor’s notes reflect the
advice that he gave to her:
I told her that basically she has an expected problem
after vertical banded gastroplasty that has been more
apparent after many years have passed following
this procedure. That problem specifically is stricture
at the site of the Marlex [polypropylene] band placed
to regulate the size of the outlet of the “neo-stomach”
created with the VBG. I told her that I certainly felt
that this was amenable to revision and would simply
require conversion to a roux-Y gastrojejunostomy.
I further told her that I felt that this was a procedure
which was widely done 20 years ago and was a cov-
ered benefit even by the Dean Health Plan until very
recently. To that end I believe that this would
be considered revision surgery and not bariatric
surgery as the patient does not need surgery for weight
loss. She simply needs a procedure to correct the
situation which will continue to create increasing
complications for her. I told her that in my opinion
she should strongly consider conversion of vertical
banded gastroplasty to roux-Y gastrojejunostomy.
No. 08-3219 9

She is amenable to this and we will go ahead and
arrange this at this point in time.
R. 42 ¶ 14; see R. 26 at 6.3 The Roux-en-Y procedure obvi-
ates problems stemming from stenosis of the gastric
outlet by connecting the small gastric pouch created by
the VBG directly to the small intestine, thus bypassing
the outlet and the remainder of the stomach. The proce-
dure was scheduled for December 6, 2005 at St. Mary’s
Hospital in Madison. St. Mary’s is a Dean-affiliated
hospital.
In anticipation of the Roux-en-Y procedure, Dr. Heupen-
becker’s office provided Kenseth with a written form
that included a standard set of pre-printed instructions

3
It appears there was a difference of opinion among Kenseth’s
physicians as to whether the Roux-en-Y procedure was likely
to be covered by the Dean group insurance plan. Although
Dr. Huepenbecker believed it would be, as is evident from
the note that we have reproduced above, the gastroenterologist
who referred Kenseth to Dr. Huepenbecker, Dr. Christiansen,
thought that such corrective surgery might not be covered
to the extent it was intended to address complications
resulting from Kenseth’s 1987 VBG. See R. 26 at 11. The physi-
cians’ impressions as to insurance coverage for the proce-
dure did not bind Dean, which as we have noted had the
discretionary authority as the claims administrator to
construe the terms of the Certificate. R. 34-6 at 29 (2005).
However, it does serve to highlight the importance of
Kenseth’s subsequent telephone call to Dean’s customer
service department to seek information from Dean itself on
that very point.
10 No. 08-3219

along with certain details about the surgery (including
the date and nature of the surgery, as well as the names
of her primary physician and surgeon) that his staff filled
in. Dr. Huepenbecker uses this form routinely, and to
his knowledge it is commonly used throughout the Dean
Clinic. The completed form described the surgery as a
“Roux revision of proximal gastric stenosis.” R. 42 ¶ 15;
see R. 26 at 7. The standard instructions included the
following (somewhat awkward) admonishment to
Kenseth regarding her insurance:
7. It is the patient’s responsibility to check on cover-
age whether prior authorization or pre-certification is
needed prior to your surgery. It is also the patient’s
responsibility to check on coverage. Please call your
insurance company and let them know the date and
type of surgery you are having. If they need further
information you may give them your nurse’s phone
number and they can call with questions.
R. 42 ¶ 15; see R. 26 at 7 (emphasis in original).
Later that same day, consistent with the instructions on
the form provided to her, Kenseth called Dean’s customer
service number and spoke with Maureen Detmer, a
customer service representative who had been employed
in that capacity for about one year. Kenseth avers that
she told Detmer she would be having “a reconstruction
of a Roux-en-Y stenosis [sic],” R. 42 ¶ 17, see R. 21 at 9,
Kenseth Dep. 30, and when Detmer asked her to
explain the nature of the surgery, Kenseth told her “it
had to deal with the bottom of the esophagus because of
all the acid reflux I was having,” R. 42 ¶ 17; see R. 21 at 9,
No. 08-3219 11

Kenseth Dep. 30. Kenseth did not advise Detmer that
her condition was a result of the VBG she had under-
gone in 1987, although Kenseth by her own account
was aware of the connection; she represents that her
omission of that information was not intentional. Detmer
put Kenseth on hold for a moment. When she returned
to the line, Detmer advised Kenseth that the procedure
would be covered by her insurance, subject to a $300
copayment. The conversation between Kenseth and
Detmer was not recorded, and although Detmer’s
practice was to make handwritten notes of such con-
versations, those were destroyed after thirty days. Detmer
did memorialize the call in Dean’s TRACS software
system, noting that Kenseth had indicated she was
having reconstructive surgery on her esophagus with
Dr. Huepenbecker and that Detmer had verified
insurance coverage subject to a $300 copayment. By the
time she was deposed in this lawsuit, Detmer had
no independent recollection of her conversation with
Kenseth.
Detmer was not trained to tell, and does not tell, partici-
pants in Dean’s health plans who call with questions
about coverage that they cannot rely on her interpreta-
tion of the schedule of benefits. “I don’t believe I’ve ever
said that, no,” Detmer testified. R. 28 at 10, Detmer Dep. 35.
One may therefore infer that Detmer did not give such
a warning to Kenseth. If callers ask for information
beyond what she or a supervisor have told them, she
typically refers them back to the Certificate.
We should note that Kenseth, although she had looked
at the Certificate on prior occasions, did not consult the
12 No. 08-3219

Certificate in advance of her surgery in order to see
what light it might shed on the question of coverage for
that procedure. Nor did she ask Dean to provide
written confirmation of coverage, which is a step Dean’s
counsel suggests that she could have taken. Dean Br. 9.
She instead relied on Detmer’s oral representation that
the surgery would be covered by Dean’s group health
insurance plan.
Kenseth’s surgery proceeded as scheduled on Decem-
ber 6, 2005. Dr. Huepenbecker created a small pouch in
the lesser curvature of the stomach, beneath the
esophagus, in order to ensure an adequate blood supply
to the gastric pouch or neo-stomach created in the 1987
surgery. He then connected the gastric pouch directly to
Kenseth’s small intestine by means of a “Roux loop,” thus
bypassing the remainder of her banded stomach. The
gastric band inserted in 1987 remained in place.
On the following day, Dean made an initial decision to
deny coverage for Kenseth’s surgery and all associated
services. Based on the information provided to Dean by
St. Mary’s regarding the surgery, Dean’s utilization
reviewer and its assistant medical director determined
that the Roux-en-Y procedure was designed to address
stenosis resulting from Kenseth’s 1987 VBG. In their
view, because the VBG constituted a non-covered service
under Dean’s insurance policy, any treatment aimed
at resolving complications from that surgery was itself
non-covered. By notice dated December 8, 2005, Dean
formally advised Kenseth that it was denying her claim
for the surgery and hospitalization:
No. 08-3219 13

Dean Health Plan has received information regarding
your admission to St. Mary’s Hospital for a surgical
procedure that is related to a non covered benefit.
Based on the information provided, your admission
is denied at this time. As outlined in your Group
Member Certificate and Benefit Summary, please
refer to the section Inpatient Hospital: non covered
services, number 5. Surgical services, non covered
services number 4 as well as the General Exclusions
and Limitations section, number 28. Please be aware
that complications related to a non covered benefit
are excluded from coverage. Alternatives to con-
sider include paying privately for these services or
discussing other options with your physician.
R. 42 ¶ 33; see R. 26 at 3.4
Kenseth was discharged from St. Mary’s on Decem-
ber 10, 2005. She subsequently suffered complications
from the surgery, including a persistent infection, that
required her readmission to the hospital from January 14
to January 30, 2006. Dean denied coverage for her sec-

4
We note that the notice’s citations to the applicable exclu-
sions are references to the 2006 Certificate, which the parties
have led us to believe applied only to the 2006 calendar year.
As Kenseth’s surgery took place in December 2005, it is the
2005 Certificate that would have applied to her surgery and
initial hospitalization. The exclusions in the two Certificates
are for the most part the same, but for the addition of the
word “complications” to the general exclusion for services
and supplies related to a non-covered service or benefit. See
supra at 5.
14 No. 08-3219

ond hospital stay as well. The costs of Kenseth’s surgery
and two hospital stays came to approximately $77,974.00.
Exercising her rights under the insurance policy, Kenseth
pursued an internal grievance asking Dean to reconsider
its decision to deny coverage for her Roux-en-Y surgery
and hospitalization. Dean again asserted that these
services were related to a non-covered procedure and
therefore excluded from coverage. Kenseth then pursued
a complaint resolution and formal written grievance, but
Dean did not change its position.5
Kenseth subsequently filed suit asserting two claims
under ERISA and one under Wisconsin law. She asserted
first that Dean breached its fiduciary obligation to her
in two senses: (1) the Certificate setting forth her
insurance benefits was unclear as to coverage for her
2005 surgery and misleading as to the process she
should follow in order to determine whether that surgery
would be covered, and (2) Dean failed to provide her
with a procedure (other than contacting customer ser-
vice) through which she could obtain authoritative
preapproval of her surgery. She analogized her situation
to that of the plaintiff in Bowerman v. Wal-Mart Stores, Inc.,

5
There was some testimony below to the effect that Dean on
occasion has provided coverage when a member has incurred
medical expenses in reliance on mistaken advice she has
been given by one of Dean’s customer service representatives,
R. 30 (Paskey Dep.) at 24-26, but like the district court, we
do not believe this has any material bearing on the legal
issues presented in this case.
No. 08-3219 15

226 F.3d 574, 590-91 (7th Cir. 2000), where we held that
it was a breach of fiduciary duty for the insurer to
provide an insured with ambiguous plan documents
and then to fail to clear up the ambiguity in conversations
between the insured and the insurer’s representative.
Kenseth asserted second that Dean is collaterally estopped
from denying benefits because Dean’s customer service
representative orally advised her that the surgery would
be covered, and she relied on that representation. Finally,
Kenseth asserted that Dean’s reliance on the non-covered
nature of her 1987 VBG to deny coverage for subsequent
medical treatment addressing complications from that
surgery ran afoul of a Wisconsin statute precluding
an insurer from excluding coverage for preexisting condi-
tions for a period of longer than twelve months.
The district court granted summary judgment to Dean
on each of these claims. 568 F. Supp. 2d 1013. The court
found no support in Bowerman for the notion that Dean
had a fiduciary duty to identify a procedure through
which Kenseth could confirm that her 2005 surgery was
covered by her group health insurance. The court
reasoned that only if the average person could not read
the plan documents and determine for herself whether a
particular medical condition or service is covered does
the insurer have a duty to provide another means for the
insured to ascertain coverage. Here, “no reasonable
person reading the plan would have difficulty deter-
mining that the plan would not cover plaintiff’s 2005
surgery.” Id. at 1017. It was clear that the 2005 surgery
was related to the non-covered VBG and thus fell within
the Certificate’s general exclusion for services and
16 No. 08-3219

supplies related to non-covered procedures. Id. The fact
that the exclusion was modified in 2006 to include the
term “complications” did not alter the court’s view that
the language as it stood in 2005 was clear: “the phrase
‘related to’ is not a term of art that only a technical
writer can understand,” and it is broad enough to include
complications from a non-covered service. Id. Nor was
the court persuaded that various other provisions of
ERISA and its implementing regulations gave rise to a
duty to provide a confirmation mechanism. Id. at 1018.
The court found the estoppel claim flawed for two
principal reasons. First, in soliciting coverage informa-
tion from Dean’s customer service representative,
Kenseth had failed to disclose that the purpose of her
2005 surgery was to remediate a complication resulting
from her 1987 surgery. Id. at 1018-19. In light of that
omission, the customer service worker’s representation
that Kenseth’s upcoming surgery would be covered was
“not necessarily inaccurate.” Id. at 1019. Second, oral
representations will not support an ERISA estoppel claim
for benefits that are different from those unambiguously
set forth in a written plan. As the court had already
observed with respect to the fiduciary claim, Dean’s
certificate unambiguously excluded coverage for any
services related to a non-covered service. Id.
Finally, the court rejected the notion that Dean was
obliged to pay for the 2005 surgery in view of Wisconsin’s
twelve-month limit on exclusions for preexisting con-
ditions. Wis. Stat. § 632.746(1)(b). As the court saw it,
Kenseth was not challenging an exclusion for preexisting
No. 08-3219 17

conditions. “Under defendant’s plan, it is irrelevant when
plaintiff had the gastric bands inserted; why she did so
is the only thing that matters. Defendant would have . . .
denied coverage for the 2005 surgery whether she had
inserted the bands before or after she joined the plan
in 1996.” 568 F. Supp. 2d at 1019 (emphasis in original).

II.
We review the district court’s decision to enter sum-
mary judgment against Kenseth de novo, and we are
obliged in the course of our review to consider the facts
in the light most favorable to Kenseth. E.g., Coffman v.
Indianapolis Fire Dep’t, 578 F.3d 559, 563 (7th Cir. 2009).
Although we conclude that summary judgment was
warranted as to Kenseth’s estoppel and state-law claims,
we believe that the facts would support a finding that
Dean breached the fiduciary duty it owed to her as an
insurer with the discretionary authority to grant or deny
her claim for benefits. We therefore vacate the grant
of summary to Dean on that claim. Whether further
proceedings are warranted on that claim depends on
whether Kenseth is seeking a form of equitable relief
that ERISA authorizes for that type of claim.

A. Collateral Estoppel
We need not linger long over the collateral estoppel and
state law claims. Equitable estoppel typically requires
that the party being estopped—here, Dean—knows the
relevant facts. E.g., United States v. Fitzgerald, 938 F.2d
18 No. 08-3219

792, 797 (7th Cir. 1991) (quoting Portmann v. United
States, 674 F.2d 1155, 1167 (7th Cir. 1982)). A relevant
fact here was that the acid reflux and other maladies
that Kenseth was experiencing, and that the Roux-en-Y
procedure was intended to resolve, were caused by her
1987 VBG surgery. Insurance coverage for particular
types of health care often depends on the origin of the
underlying medical condition. To cite the most obvious
example, many policies exclude coverage, at least for
some period of time, for treatment of any medical condi-
tion that predated the insured’s enrollment with the
insurer—so called preexisting conditions. In this case,
the policy excluded coverage for both the surgical treat-
ment of morbid obesity and any services “related to” such
a non-covered treatment. The connection between
Kenseth’s condition in 2005 and her 1987 VBG was thus
a fact relevant to coverage under the Dean policy. It is
undisputed, however, that Kenseth did not advise
Dean’s customer service agent of that connection not-
withstanding her own awareness of the relationship. By
Kenseth’s own account, she informed Detmer only that
the Roux-en-Y procedure “had to deal with the bottom
of the esophagus because of all the acid reflux I was
having.” R. 21 at 9, Kenseth Dep. 30. Only after the Roux-
en-Y surgery took place did Dean learn that the pro-
cedure was necessitated by complications resulting
from the 1987 VBG.6 We do not mean to imply that

6
Indeed, it is not clear whether Dean even understood, prior
to receiving documentation from the hospital, that Kenseth’s
(continued...)
No. 08-3219 19

Kenseth deliberately withheld that information; there is
no evidence suggesting that she was attempting to
deceive Dean or that she even fully appreciated, at that
time, the significance of the 1987 surgery vis-à-vis the
terms of the Certificate. But given that Dean did not
know a fact that was highly material to coverage under
its policy, we do not think that it can be equitably
estopped on the basis of an oral representation that its
agent made on the basis of limited and incomplete facts.
Dean can be faulted, as we discuss below, for soliciting
telephonic inquiries concerning coverage and not
having appropriate cautions and safeguards in place to
prevent its participants and beneficiaries from relying
on the mistaken advice they are given by its customer

6
(...continued)
surgery had as much if not more to do with her stomach than it
did with her esophagus. Based on the (understandably) impre-
cise description of the surgery Kenseth had given to Detmer,
Detmer’s note in the TRACS software system suggested
that Kenseth was undergoing reconstructive surgery on her
esophagus, as opposed to surgery on her stomach and small
intestine. See R. 31 (Reber Dep.) at 52, 55 (indicating that
notation in TRACS system regarding Kenseth’s surgery was
inaccurate). Kenseth’s description is not inconsistent with the
way in which her doctors themselves described her condition
and the surgery to correct it. See R. 34-3 ¶¶ 4, 6, 10, 12; R. 34-5
at 29. Arguably, however, reference to the esophagus alone
made it even less likely that Detmer or Dean would have
been alerted to the fact that this surgery was necessitated by
complications resulting from the prior gastric banding proce-
dure.
20 No. 08-3219

service agents. But that, we believe, is a problem more
appropriately dealt with as a breach of fiduciary duty.

B. Wisconsin Statutory Limit on Exclusions for Preex-
isting Conditions
We also agree that summary judgment was properly
granted as to Kenseth’s state-law claim. A Wisconsin
statute precludes a group health insurer from excluding
coverage for a preexisting condition for a period of
longer than twelve months. Wis. Stat. § 632.746(1)(b).
Kenseth reasons that her gastric band constituted a preex-
isting condition and that, consequently, Dean could not
exclude coverage for treatment related to the band for
more than twelve months after she joined the Dean Plan
in 1996. However, Wisconsin law also makes clear that
the statutory limit on exclusions for preexisting condi-
tions does not “[p]revent a group health benefit plan
from establishing limitations or restrictions on the
amount, level, extent or nature of benefits or coverage
for similarly situated individuals enrolled under the
plan.” Wis. Stat. § 632.748(3). The exclusion that Dean
relied on here is properly understood as a restriction on
the nature of benefits provided rather than one based on
a preexisting condition. See Wynn v. Washington Nat’l Ins.
Co., 122 F.3d 266, 269 (5th Cir. 1997) (Louisiana law)
(exclusion for particular disease or injury is “qualitatively
different” from exclusion for preexisting condition).
Although it is true that Kenseth’s VBG surgery took place
before she joined the Dean plan, and her banded stomach
thus could be understood as a preexisting condition,
No. 08-3219 21

that was not the basis on which Dean denied coverage
for conditions associated with the band. Dean instead
relied on the exclusions in the policy for surgeries
designed to deal with morbid obesity and for any condi-
tions related to such non-covered services. As the
district court pointed out, the timing of Kenseth’s VBG
procedure was irrelevant to Dean’s decision; the exclu-
sions would have applied regardless of whether
Kenseth had had the gastric band inserted before or
after she joined the Dean plan. 568 F. Supp. 2d at 1019.
We therefore agree with the district court that Dean’s
decision to deny coverage for the 2005 remediation
surgery did not run afoul of the Wisconsin statute. See
Wynn, 122 F.3d at 269 (reaching similar conclusion
under Louisiana law); accord Aul v. Golden Rule Ins. Co., 737
N.W.2d 24, 31 (Wis. Ct. App. 2007); Usick v. Am. Fam. Mut.
Ins. Co., 131 P.3d 1195, 1201 (Colo. Ct. App. 2006).

C. Breach of Fiduciary Duty
We turn, then, to Kenseth’s claim for breach of fiduciary
duty. As we detail below, the facts would permit the
factfinder to conclude that Dean breached the obligation
of loyalty it owed to Kenseth by providing her with plan
documentation that was unclear as to coverage for her
surgery, by inviting her and other participants to call its
customer service representatives with questions about
coverage but omitting to warn callers that they cannot
rely on the answers they are given, and by failing to
inform participants how they might obtain answers
from Dean that they could rely upon. Such a finding
22 No. 08-3219

would permit an award of appropriate equitable relief,
but not legal relief, to Kenseth.
A claim for breach of fiduciary duty under ERISA
requires the plaintiff to prove: (1) that the defendant is
a plan fiduciary; (2) that the defendant breached its
fiduciary duty; and (3) that the breach resulted in harm
to the plaintiff. Kannapien v. Quaker Oats Co., 507 F.3d 629,
639 (7th Cir. 2007). Moreover, ERISA authorizes an
award of equitable relief alone to a plan participant
suing on her own behalf for breach of fiduciary duty. See
Great-West Life & Annuity Ins. Co v. Knudson, 534 U.S. 204,
210, 122 S. Ct. 708, 712-13 (2002). Where it is clear that
the plaintiff is seeking legal rather than equitable
relief, dismissal of the claim may be appropriate. See
Health Cost Controls v. Skinner, 44 F.3d 535, 537-38 (7th Cir.
1995). We take each of these points in turn.

1. Dean is a plan fiduciary
Apropos of the first element, Kenseth’s claim focuses
on the actions and omissions of Dean rather than Detmer.
Of course, it was Detmer who advised Kenseth that her
Roux-en-Y procedure would be covered by Dean. But
ERISA provides that “a person is a fiduciary to the
extent (i) he exercises any discretionary authority or
discretionary control respecting management of such
plan or exercises any authority or control respecting
management or disposition of assets, (ii) he renders
investment advice for a fee or other compensation, direct
or indirect, with respect to any moneys or other
No. 08-3219 23

property of such plan, or has any authority or responsi-
bility to do so, or (iii) he has any discretionary authority
or discretionary responsibility in the administration of
such plan.” 29 U.S.C. § 1002(21)(A). Detmer fits none of
these categories: she had no authority or discretion
in terms of managing the Dean plan, she did not render
investment advice or exercise any control over the assets
of the plan, nor did she possess any discretionary
authority or responsibility in the administration of the
plan. Her role as a customer service representative was
ministerial in nature. See 29 C.F.R. § 2509.75-8, D-2 (“a
person who performs purely ministerial functions . . . for
an employee benefit plan within a framework of policies,
interpretations, rules, practices and procedures made
by other persons is not a fiduciary . . . ”); see also, e.g.,
Kannapien, 507 F.3d at 639 (neither plant manager nor
human resources manager acted as plan fiduciary
in discussing early retirement plan benefits with em-
ployees); Tegtmeier v. Midwest Operating Eng’rs Pension
Trust Fund, 390 F.3d 1040, 1047-48 (7th Cir. 2004) (adminis-
trative manager of pension fund did not act as fiduciary in
communicating with employee regarding ability to
put pension application on hold); Schmidt v. Sheet Metal
Workers’ Nat’l Pension Fund, 128 F.3d 541, 547 (7th Cir. 1997)
(benefits analyst did not act as plan fiduciary in advising
pension plan participant how to designate beneficiary).
And although Detmer was Dean’s employee, and Dean,
as we are about to explain, does qualify as an ERISA fiduci-
ary, Dean cannot be held liable on the basis of respondeat
superior. As we observed in Kannapien, “Finding
that [p]lan administrators may breach a fiduciary duty
24 No. 08-3219

vicariously through the actions of a non-fiduciary would
vitiate our requirement that an ERISA claim for breach
of a fiduciary duty must be asserted against plan fiducia-
ries.” 507 F.3d at 640 (citing Jenkins v. Yager, 444 F.3d 916,
924 (7th Cir. 2006), and Bowerman v. Wal-Mart Stores, Inc.,
supra, 226 F.3d at 590-91).
Dean is another matter, however. As an HMO and a
claims administrator possessed of discretion in con-
struing and applying the provisions of its group health
plan and assessing a participant’s entitlement to benefits,
Dean is an ERISA fiduciary. See § 1002(21)(A)(i) and (iii);
Aetna Health Inc. v. Davila, 542 U.S. 200, 220, 124 S. Ct. 2488,
2502 (2004); Mondry v. Am. Fam. Mut. Ins. Co., 557 F.3d
781, 803 (7th Cir.), cert. denied, 130 S. Ct. 200 (2009).
As a fiduciary, Dean is obliged to carry out its duties
with respect to the plan “solely in the interest of the
participants and beneficiaries and—(A) for the exclusive
purpose of: (i) providing benefits to participants and
their beneficiaries; . . . [and] (B) with the care, skill, pru-
dence, and diligence under the circumstances then pre-
vailing that a prudent man acting in a like capacity
and familiar with such matters would use in the conduct
of an enterprise of a like character and with like aims . . . .”
29 U.S.C. § 1104(a)(1). Dean thus owes the participants
in its plan and their beneficiaries a duty of loyalty like
that borne by a trustee under common law, § 1104(a)(1)(A),
and it must exercise reasonable care in executing that
duty, § 1104(a)(1)(B). Mondry, 557 F.3d at 807.
No. 08-3219 25

2. The factfinder could conclude that Dean breached its
fiduciary obligations to Kenseth

a.
“The duty to disclose material information is the core of
a fiduciary’s responsibility, animating the common law
of trusts long before the enactment of ERISA.” Eddy v.
Colonial Life Ins. Co. of Am., 919 F.2d 747, 750 (D.C. Cir.
1990). This duty of course includes an obligation not to
mislead a plan participant or to misrepresent the terms
or administration of an employee benefit plan, including
an insurance plan. Mondry, 557 F.3d at 807; Bowerman, 226
F.3d at 590; Anweiler v. Am. Elec. Power Serv. Corp., 3 F.3d
986, 991 (7th Cir. 1993). But the duty is not limited to
that negative command. It includes an affirmative obliga-
tion to communicate material facts affecting the interests
of beneficiaries. Id. “This duty exists when a beneficiary
asks fiduciaries for information, and even when he or
she does not.” Id. (citing Eddy, 919 F.2d at 750); Solis v.
Current Dev. Corp., 557 F.3d 772, 777-78 (7th Cir. 2009); see
R ESTATEMENT (SECOND) OF T RUSTS § 173, comment d (1959)
(the trustee “is under a duty to communicate to the
beneficiary material facts affecting the interest of the
beneficiary which he knows the beneficiary does not
know and which the beneficiary needs to know for his
protection in dealing with a third person”) (cited in Eddy).
Accord Kalda v. Sioux Valley Physician Partners, Inc., 481
F.3d 639, 644 (8th Cir. 2007) (“a fiduciary has a duty to
inform when it knows that silence may be harmful and
cannot remain silent if it knows or should know that
26 No. 08-3219

the beneficiary is laboring under a material misunder-
standing of plan benefits,” and “[t]he duty of loyalty
requires a fiduciary to disclose any material information
that could adversely affect a participant’s interests”)
(citations omitted); Gregg v. Transp. Workers of Am. Int’l,
343 F.3d 833, 845-46 (6th Cir. 2003) (“ ‘once an ERISA
[beneficiary] has requested information from an ERISA
fiduciary who is aware of the beneficiary’s status
and situation, the fiduciary has an obligation to convey
complete and accurate information material to the benefi-
ciary’s circumstance, even if that requires conveying informa-
tion about which the beneficiary did not specifically in-
quire’ ”) (quoting Krohn v. Huron Mem. Hosp., 173 F.3d 542,
547 (6th Cir. 1999)) (emphasis in Gregg); Bixler v. Cent. Pa.
Teamsters Health & Welfare Fund, 12 F.3d 1292, 1300 (3d Cir.
1993) (“Th[e] duty to inform is a constant thread in the
relationship between beneficiary and trustee; it entails
not only a negative duty not to misinform but also an
affirmative duty to inform when the trustee knows that
silence might be harmful. In addition, the duty recognizes
the disparity of training and knowledge that potentially
exists between a lay beneficiary and a trained fiduciary.
Thus, while the beneficiary may, at times, bear a burden
of informing the fiduciary of her material circumstance,
the fiduciary’s obligations will not be excused merely
because she failed to comprehend or ask about a technical
aspect of the plan.”); see also Griggs v. E.I. DuPont de
Nemours & Co., 237 F.3d 371, 380-81 (4th Cir. 2001); Estate of
Becker v. Eastman Kodak Co., 120 F.3d 5, 8-10 (2d Cir. 1997);
but see Varity Corp. v. Howe, 516 U.S. 489, 506, 116
S. Ct. 1065, 1074-75 (1996) (reserving question whether
No. 08-3219 27

fiduciary has duty to disclose truthful information
either on its own initiative or in response to employee
inquiries).
Eddy is the lead opinion in this line of cases. Eddy, the
plaintiff, learned that his employer was cancelling its
group health insurance coverage just days before he
was scheduled to have exploratory surgery. Eddy con-
tacted the insurer, Colonial Life/Chubb, to determine
whether he had the option of converting his group,
employment-based coverage to an individual policy.
According to Eddy’s testimony (supported by his co-
workers), he was informed that he had no right to make
such a conversion. (Colonial Life/Chubb had no record of
the call and no witness who could verify or deny Eddy’s
account.) Left without insurance coverage, Eddy post-
poned the surgery. But contrary to what Eddy said he was
told, he in fact did have the right to convert his group
coverage into individual coverage. He later sued
Colonial Life/Chubb under ERISA contending that the
insurer’s failure to correctly advise him on this point
constituted a breach of the insurer’s fiduciary duty. The
district court rejected the claim after trial, finding as
a matter of fact that Eddy had asked Colonial
Life/Chubb not whether he could convert his group cover-
age to individual coverage but rather whether he could
continue his group coverage. As there was no ability to
continue the group coverage given his employer’s
decision to terminate the plan, the court reasoned that
Colonial Life/Chubb had correctly advised Eddy and
consequently, in the district court’s view, had not misled
him in a way that might establish a breach of fiduciary
28 No. 08-3219

duty. The District of Columbia Circuit reversed, con-
cluding that the district court had too narrowly under-
stood an insurer’s fiduciary duty to a beneficiary. 919 F.2d
at 751.
[R]efraining from imparting misinformation is only
part of the fiduciary’s duty. Once Eddy presented his
predicament, Colonial Life was required to do more
than simply not misinform[;] Colonial Life also had an
affirmative obligation to inform—to provide complete
and correct material information on Eddy’s status
and options.
Thus, although the trial court found that “[t]he issue in
this case . . . is whether plaintiff . . . used the term
‘convert’ as opposed to ‘continue,’ ” Mem. Op. at 12,
J.A. at 23, such a constricted standard of fiduciary
duty is counter to both the letter and the spirit of the
common law of trusts. Regardless of the precision of
his questions, once a beneficiary makes known his
predicament, the fiduciary “is under a duty to com-
municate . . . all material facts in connection with the
transaction which the trustee knows or should know.”
Restatement (Second) of Trusts § 173, comment d
(1959). Eddy should not be penalized because
he failed to comprehend the technical difference
between “conversion” and “continuation.” The same
ignorance that precipitates the need for answers often
limits the ability to ask precisely the right questions.
This duty to communicate complete and correct
material information about a beneficiary’s status
and options is not a novel one. C hubb expressly
No. 08-3219 29

invited telephone inquires from beneficiaries. Ac-
cording to the testimony of Chubb’s counsel and
assistant secretary, Chubb maintained a separate unit
charged in part with “taking phone calls” and
“handl[ing] questions” about the conversion of insur-
ance coverage. Tr. at 120. Chubb also maintained
several toll-free telephone lines—including one dedi-
cated to questions about the conversion of coverage.
Trial Exhibit C. Finally, and perhaps most significantly,
Chubb provided insured persons with a description
of conversion options in a document that expressly
directed beneficiaries: “if you have any questions, please
contact the Group Insurance Department.”
919 F.2d at 751 (emphasis in Eddy). Finally, the court
rejected the trial court’s additional observation that Eddy
had failed to write a letter or to pursue any additional
contacts with Colonial Life/Chubb regarding the termina-
tion of his health benefits. “Eddy did not have a duty to
try and try again until he received correct and complete
information. Once Eddy had made clear his situation,
Colonial Life had a duty to provide the material informa-
tion.” Id. at 752 (emphasis in Eddy).
Our own decision in Anweiler embraced the affirma-
tive duty that our sister circuit had laid out in Eddy.
Fiduciaries must not only refrain from misleading plan
participants, we explained, but they “must also com-
municate material facts affecting the interests of beneficia-
ries.” 3 F.3d at 991 (citing Rosen v. Hotel & Rest. Employees
& Bartenders Union of Phila., Bucks, Montgomery & Del.
Counties, Pa., 637 F.2d 592, 599-600 (3d Cir. 1981)). “This
30 No. 08-3219

duty exists when a beneficiary asks fiduciaries for informa-
tion, and even when he or she does not.” Id. (citing Eddy,
919 F.2d at 750). In Anweiler, a disability insurer had
asked its insured to sign an agreement making the
insurer the beneficiary of his life insurance policy. The
insurer made the request in order to ensure that it was
compensated for any excess disability payments that the
insured might receive, and the insured complied. The
insurer’s desire for security was well founded: the
insured later died owing the insurer more than $46,000
in overpayments. But when the insurer solicited the
insured’s signature, it failed to advise him that he
was not obligated to sign the agreement in order to
receive disability benefits or that he had a right to revoke
the beneficiary designation at any time. Following his
death, his widow, who received none of the insurance
proceeds, sued the insurer. We held that the insurer’s
failure to apprise its insured of his options constituted a
breach of fiduciary duty:
[W]e agree with the district court that defendants
breached their fiduciary duties by not giving
Mr. Anweiler full and complete material information
concerning the reimbursement agreement when he was
asked to sign it. Reimbursements pursuant to agree-
ments like Aetna’s have previously been upheld. But
Mr. Anweiler was not informed of material facts
concerning this agreement in violation of the protec-
tion provided by ERISA and its fiduciary duty re-
quirement. Furthermore, Aetna may have manipulated
its position as insurer of the disability plan and life
insurance policy to its own benefit rather than
No. 08-3219 31

Mr. Anweiler’s when it provided for reimbursement
of one policy by way of another.
3 F.3d at 991-92 (citations omitted).
In Bowerman, too, we emphasized the affirmative ob-
ligation that an insurer has to provide accurate and
complete information when a beneficiary inquires about
her insurance coverage. 226 F.3d at 590. In that case,
agents of both the plaintiff’s employer and her insurer
failed to advise her of the need to obtain COBRA insurance
coverage 7 for a one-month break in her service with the
employer. During that brief hiatus, the employee had
learned she was pregnant. In reliance on assurances
that her employer-sponsored coverage resumed immedi-
ately upon her return to work, the employee declined
COBRA coverage. But because her pregnancy had been
confirmed during the break, the insurer subsequently
deemed it to be a preexisting condition and refused
payment for any services related to the pregnancy. We
held that the insurer had breached its fiduciary duty to
the employee in two senses. First, the written documents
supplied to the employee regarding her insurance plan
and COBRA rights did not adequately explain the con-
nection between COBRA coverage for a break in service

7
COBRA is, of course, an acronym for the Combined Omnibus
and Reconciliation Act of 1985, which amended ERISA to
grant certain departing employees the right to temporarily
extend the health insurance coverage they enjoyed during their
tenure with an employer. See 29 U.S.C. §§ 1161 et seq. (private
employers) and 42 U.S.C. §§ 300bb-1 et seq. (public employers).
32 No. 08-3219

and the insurer’s exclusion for preexisting conditions. Id.
Second, shortly after the employee’s return to work, an
administrative assistant responsible for benefits enroll-
ment had assured her that she did not need COBRA
coverage because her insurance coverage had resumed
immediately upon her return. Soon thereafter, when the
insurer first began to reject the submitted bills for
pregnancy-related services, the employee telephoned the
insurer’s toll-free number as instructed in her plan sum-
mary and was assured by a customer service agent that
the agent would “get this fixed” for the employee. Even
at that time, the employee still could have paid for
COBRA coverage retroactively and solved the problem,
but neither her employer’s administrative assistant nor
the insurer’s agent said anything about that possibility.
Only after time ran out on the employee’s COBRA option
did the insurer finally make clear to her that her break
in service, coupled with her failure to obtain coverage
under COBRA for that break, rendered her pregnancy
a preexisting condition excluded from coverage. We
deemed this too to be a breach of the insurer’s fiduciary
duty to the insured. “Both Spencer [the administrative
assistant] and the service representative failed to
provide accurate and forthright answers to Ms. Bower-
man’s queries about her coverage in general and about
her need to obtain COBRA coverage.” 226 F.3d at 591.
As we explain in greater detail below, the affirmative
duty of disclosure described in these cases comes into
play here, given that Dean not only permitted but encour-
aged participants to call its customer service line with
questions about whether particular medical services
No. 08-3219 33

were covered by the Dean plan. One can readily infer
that Dean understood that callers like Kenseth were
seeking to determine in advance whether forthcoming
medical treatments would or would not be paid for by
Dean, and to plan accordingly. Yet callers were not
warned that they could not rely on the advice that they
were given by Dean’s customer service representatives
and that Dean might later deny claims for services that
callers had been told would be covered. Nor were
callers advised of a process by which they could obtain
a binding determination as to whether forthcoming
services would be covered. The factfinder could conclude
that Dean had a duty to make these disclosures so that
participants could make appropriate decisions about
their medical treatment.

b.
Before proceeding further, it behooves us to address an
apparent tension between cases like Anweiler, which
require the fiduciary to disclose material facts and circum-
stances to the insured, and a second line of cases beginning
with our opinion in Frahm v. Equitable Life Assur. Soc. of
U.S., 137 F.3d 955, 958-60 (7th Cir. 1998), which hold that
negligence in the course of advising an insured as to her
rights and obligations under a plan is not in and of itself
actionable as a breach of fiduciary duty. We read Frahm
and its progeny to absolve a fiduciary of liability for
negligent misrepresentations made by an agent of the plan
to a plan participant or beneficiary so long as the plan
documents themselves are clear and the fiduciary has
34 No. 08-3219

taken reasonable steps to avoid such errors. Kenseth’s
claim, which is premised on the ambiguity of the Certifi-
cate and on Dean’s lack of care in training the customer
service representatives from whom it has encouraged
plan participants to seek coverage information, describes
a type of fiduciary negligence that these cases recognize
as actionable.
Section 1104(a)(1) is not a guarantee of accuracy in all
communications with the insured. Frahm, 137 F.3d at 958-
60. As we recognized in Frahm, mistakes in any organiza-
tion are inevitable, and on occasion participants and
beneficiaries will be given inaccurate advice by plan
representatives, be they ministerial employees or
corporate managers. Id. at 959-60. Deliberate misrep-
resentations do, of course, constitute a breach of the
fiduciary’s duty of loyalty. Id. at 959; see also Tegtmeier v.
Midwest Operating Eng’rs Pension Fund, supra, 390 F.3d at
1047 (citing Anweiler, 3 F.3d at 991); § 1104(a)(1)(A). We
have said, on the other hand, that notwithstanding the
fiduciary’s duty to provide complete and accurate infor-
mation to the insured, mistakes in the advice given to
an insured which are attributable to the negligence of the
individual supplying that advice are not actionable as a
breach of fiduciary duty. Frahm, 137 F.3d at 960; see also
Kannapien v. Quaker Oats Co., supra, 507 F.3d at 639-40;
Brosted v. Unum Life Ins. Co. of Am., 421 F.3d 459, 466 (7th
Cir. 2005); Beach v. Commonwealth Edison Co., 382 F.3d 656,
658 (7th Cir. 2004); Vallone v. CNA Fin. Corp., 375 F.3d 623,
640-42 (7th Cir. 2004); but see Beach, 382 F.3d at 668-69
(Ripple, J., dissenting) (observing that this court has not
specifically considered when a plan representative’s
No. 08-3219 35

state of mind is relevant to the duty to provide the
insured with complete and accurate information, and
noting that those courts that have addressed this ques-
tion have rejected a requirement that misstatements be
deliberate); contra Pfahler v. Nat’l Latex Prods. Co., 517
F.3d 816, 830 (6th Cir. 2007) (“ ‘A fiduciary breaches
his duties by providing plan participants with
materially misleading information,’ even when he does so
negligently, rather than intentionally.”) (quoting James
v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 449 (6th
Cir. 2002)); Mathews v. Chevron Corp., 362 F.3d 1172,
1183 (9th Cir. 2004) (“We fail to see the logic in trans-
planting the element of scienter from the tort of deceit
into a statutory ERISA claim with roots in the law of
fiduciaries and trusts.”); Griggs v. E.I. DuPont de Nemours &
Co., supra, 237 F.3d at 380 (“a fiduciary’s responsibility
when communicating with the beneficiary encompasses
more than merely a duty to refrain from intentionally
misleading a beneficiary,” and also includes a duty
“ ‘not to misinform employees through material misrep-
resentations and incomplete, inconsistent, or contra-
dictory disclosures’ ”) (quoting Harte v. Bethlehem Steel
Corp., 214 F.3d 446, 452 (3d Cir. 2000)).
But this does not mean that the duty to convey
complete and accurate information is toothless. Frahm
recognizes that the duty of care imposed by section
1104(a)(1)(B) entails a duty to take reasonable steps in
furtherance of an insured’s right to accurate and complete
information. 137 F.3d at 960 (“A plan administrator
satisfies § 1104(a)(1)(B) by taking appropriate precau-
tions—such as training the benefits staff and providing
36 No. 08-3219

accurate written explanations—even if the precautions
sometimes prove to be insufficient.”). And other decisions
from this court, both before and after Frahm, have recog-
nized that the failure to take such actions can render
a fiduciary liable for a breach of fiduciary duty. See
Tegtmeier, 390 F.3d at 1048 (where ministerial employee
who imparted erroneous advice to participant was not a
fiduciary, fiduciary “might still be liable for breach of
fiduciary duties if . . . [the] ministerial employee[ ] misrep-
resented the terms of the . . . [p]lan and the . . . [p]lan
documents were not clear”); Bowerman, 226 F.3d at 590-
91 (plan administrator breached fiduciary duty to partici-
pant where plan documents were unclear and ambiguity
was exacerbated by incorrect and misleading answers
representatives of plan and employer gave in response
to participant’s questions); Schmidt v. Sheet Metal Work-
ers’ Nat’l Pension Fund, supra, 128 F.3d at 547-48 (noting that
plan trustees may breach their fiduciary obligation to
provide complete and correct material information to
participants both by failing to exercise care in hiring,
training, or retaining employees who answer participant
inquiries and by failing to supply adequate written materi-
als to participants). Thus, broad statements to the effect
that “while there is a duty to provide accurate information
under ERISA, negligence in fulfilling that duty is not
actionable,” Vallone, 375 F.3d at 642, must not be read too
broadly; although negligent misrepresentations are not
themselves actionable, the failure to take reasonable steps
to head off such misrepresentations can be actionable.
The most important way in which the fiduciary
complies with its duty of care is to provide accurate and
No. 08-3219 37

complete written explanations of the benefits available to
plan participants and beneficiaries. Our decision in Frahm
emphasized the primacy that ERISA bestows on the
written over the spoken word: “ERISA requires firms to
establish their plans in writing, to provide participants
with written summary plan descriptions, and to furnish
the full text of the plans on request. All of these provi-
sions suppose that the written terms are the effective
terms.” 137 F.3d at 960. Thus, “providing accurate
written explanations” of a participant’s benefits is one
of the key ways that a fiduciary complies with its duty
to provide the insured with complete and accurate infor-
mation and thereby satisfies its duty of care under
section 1104(a)(1)(B). Id.; see also Tegtmeier, 390 F.3d at
1048; Bowerman, 226 F.3d at 590-91; Schmidt, 128 F.3d at
548; cf. Kamler v. H/N Telecomm. Servs., Inc., 305 F.3d
672, 682 (7th Cir. 2002) (plan fiduciary had no obligation
to admonish a participant of a requirement that the plan
document itself made “abundantly clear”). A plan docu-
ment need not address every contingency, Tegtmeier,
390 F.3d at 1048, but rather may be regarded as sufficient
when it address scenarios which are common enough
to occur repeatedly and will affect not just the plaintiff
but other plan participants and beneficiaries as well, id.
(citing Bowerman, 226 F.3d at 591). It must also explain
the terms of the plan in language that may be under-
stood by the ordinary reader. 29 U.S.C. § 1022(a) (sum-
mary plan description must be “written in a manner
calculated to be understood by the average plan partici-
pant”).
Notwithstanding the primacy of the plan documents,
because it is foreseeable if not inevitable that participants
38 No. 08-3219

and beneficiaries will have questions for plan represen-
tatives about their benefits, our cases also recognize
an obligation on the part of plan fiduciaries to antici-
pate such inquiries and to select and train personnel ac-
cordingly. The fiduciary satisfies that aspect of its duty
of care by exercising appropriate caution in hiring, train-
ing, and supervising the types of employees (e.g., benefits
staff) whose job it is to field questions from plan partici-
pants and beneficiaries about their benefits. Frahm, 137
F.3d at 960; see also Brosted, 421 F.3d at 466; Schmidt, 128
F.3d at 547-48.
In sum, when the plan documents are clear and the
fiduciary has exercised appropriate oversight over what
its agents advise plan participants and beneficiaries as to
their rights under those documents, the fiduciary will not
be held liable simply because a ministerial, non-fiduciary
agent has given incomplete or mistaken advice to an
insured. E.g., Brosted, 421 F.3d at 466; Frahm, 137 F.3d at
960; Schmidt, 128 F.3d at 547-48. In that situation, the
fiduciary has done what it can reasonably be expected to
do to ensure that the insured receives accurate and com-
plete information; that mistakes may nonetheless occur
is an unfortunate fact of life that does not bespeak action-
able negligence on the part of the fiduciary. Frahm, 137
F.3d at 960.
But by supplying participants and beneficiaries with
plan documents that are silent or ambiguous on a
recurring topic, the fiduciary exposes itself to liability
for the mistakes that plan representatives might make in
answering questions on that subject. Bowerman, 226 F.3d
No. 08-3219 39

at 591 (“ ‘[i]f the written materials [are] inadequate, then
the fiduciaries themselves must be held responsible for
the failure to provide complete and accurate information
in the event that a nonfiduciary agent provides
misleading information’ ”) (quoting Schmidt, 128 F.3d at
548). This is especially true when the fiduciary has not
taken appropriate steps to make sure that ministerial
employees will provide an insured with the complete and
accurate information that is missing from the plan docu-
ments themselves. See Frahm, 137 F.3d at 960; Schmidt,
128 F.3d at 547-48.
Kenseth’s claim, as we shall see, fits within these para-
meters. Her claim is not based on the simple premise
that Detmer gave her inaccurate advice as to the
coverage for her Roux-en-Y procedure. It is based instead
upon Dean’s failure, both in writing the Certificate and
in training Detmer and its other customer service agents,
to ensure that plan participants received complete and
accurate information. In particular, Kenseth alleges that
Dean failed to take reasonable steps to ensure that partici-
pants like herself understood that they could not rely
upon the coverage advice of its customer service agents
and knew where and how they could seek advice that
they could rely on. Her claim is thus consistent both with
Anweiler’s recognition that fiduciaries have a duty to
disclose material information to plan participants and
with Frahm’s admonition that fiduciaries may not be
held liable solely for the mistaken representations of
non-fiduciary, ministerial employees.
40 No. 08-3219

c.
One additional point regarding the nature of Dean’s
duty as a fiduciary demands to be made before we
proceed with our analysis. We are not called upon to
decide in this case whether a health insurer like Dean
has a duty to give its insured binding advice before a
medical service is rendered as to whether the policy
will cover that service. Our decisions have observed
generally that an insurer bears no duty to provide an
advisory opinion to every beneficiary based on his or her
unique circumstances. E.g., Chojnacki v. Georgia-Pacific
Corp., 108 F.3d 810, 817-18 (7th Cir. 1997). On the other
hand, where one is seeking medical treatment on a non-
emergency basis, there is a logical need to know in
advance whether his or her insurer will cover that treat-
ment and to plan accordingly. Upon learning that his or
her insurer will not cover a particular treatment, one
may elect to pursue an alternative treatment which will be
covered, to obtain different coverage (e.g., through one’s
spouse) which will cover the treatment, or, if there
is no coverage available, forego or delay treatment or
seek treatment in a less costly setting. See Panaras v. Liquid
Carbonic Indus. Corp., 74 F.3d 786, 793-94 (7th Cir. 1996);
Willett v. Blue Cross & Blue Shield of Ala., 953 F.2d 1335, 1343
(11th Cir. 1992); Walecia Konrad, Going Abroad to Find
Affordable Healthcare, N.Y. T IMES, March 21, 2009, at B6.
Thus, at least two courts have concluded, albeit without
extended analysis, that a health insurer does have a
good faith duty to advise its insured in advance of treat-
ment whether it deems a particular treatment to be medi-
cally necessary, such that it will be covered by the insur-
No. 08-3219 41

ance plan. See State Farm Mut. Auto. Ins. Co. v. Gueimunde,
823 So. 2d 141, 144 (Fla. Dist. Ct. App. 2002); Eggiman v.
Mid-Century Ins. Co., 895 P.2d 333, 335-37 (Or. Ct. App.
1995) (citing McKenzie v. Pacific Health & Life Ins. Co., 847
P.2d 879, 881 (Or. Ct. App. 1993)). But the existence or
not of a duty to advise the insured in advance of treat-
ment whether the insurer will cover it has not been
briefed here, and for two reasons, we need not decide
whether the insurer bears such a duty. First, Dean has not
denied that Kenseth could have obtained a definitive
decision in advance of her Roux-en-Y surgery as to
whether the procedure was covered by the policy. Al-
though it faults Kenseth for relying on what she was told
by its customer service representative, Dean suggests
that Kenseth might have written a letter or pursued
some other, unspecified course in order to obtain
binding advice from Dean as to the policy’s coverage. Dean
Br. 9. Indeed, Dean’s response below to Kenseth’s pro-
posed facts also disputed her assertion that there was no
such procedure; Dean cited testimony suggesting that
medical personnel, at least, could obtain authoritative
determinations regarding coverage in advance of treat-
ment. R. 42 ¶¶ 11, 30; see R. 27 (Breheny Dep.) at 44, 48-49
(noting that doctors occasionally call Dean’s customer
service line seeking coverage information, but adding
that there is no official procedure for obtaining binding
coverage advice in advance of treatment). Second, and
as we have noted already, the Certificate itself urges
participants with doubts about whether a particular
service will be covered to call Dean’s customer service
line “prior to having the service performed,” R. 34-6 at 11,
42 No. 08-3219

suggesting Dean’s willingness to provide advice as to
policy coverage before treatment is obtained. We shall
therefore assume that it was possible for a participant in
the Dean plan to obtain a benefits determination in ad-
vance of treatment. But as should be evident from the
following discussion, whether such advance determina-
tions were or were not available from Dean, the critical
omission on Dean’s part was its failure to communicate
that information to Kenseth.

d.
With these initial points made, we turn to an analysis of
the evidence that the parties put before the court on
summary judgment to determine whether that evidence
presents a triable question of fact as to whether Dean
breached its fiduciary obligations to Kenseth. We begin
with a threshold question about the clarity of the Certifi-
cate as to coverage for the type of surgical procedure
that Kenseth underwent.
Kenseth’s claim presumes that it would not have been
clear to an average participant in the Dean plan whether
her Roux-en-Y procedure would be covered by the plan.
Kenseth did not actually consult the Certificate prior to her
surgery; she instead followed the pre-operative instruc-
tions given to her by her surgeon and telephoned Dean’s
customer service line to obtain that information. Whether
the Certificate provided a straightforward answer on
this point is nonetheless important, for if the Certificate
was clear as to coverage for Kenseth’s surgery, any
silence or ambiguity in the Certificate as to an alternate
No. 08-3219 43

means of obtaining binding coverage advice would be
immaterial; Kenseth need only have consulted the Certifi-
cate. This was the district court’s rationale: because
it would have been clear to an ordinary reader of the
Certificate that Kenseth’s surgery was excluded from
coverage as a service that was “related to” a non-covered
service (the prior VBG), Dean had no duty to identify a
procedure by which she could obtain preapproval for
the surgery. 568 F. Supp. 2d at 1017. Dean makes the
same point on appeal. It further contends that any
mistake Detmer may have made in advising Kenseth
that her surgery would be covered by the plan amounts
to the very kind of innocent misrepresentation by a non-
fiduciary for which Frahm and similar cases say the fidu-
ciary cannot be held liable.
However, we reject the notion that it would have been
clear to the average reader of the Certificate that the plan
excluded coverage for any medical services aimed at
resolving complications resulting from an earlier
surgical procedure for morbid obesity, however long
ago that procedure may have taken place.
We may take it as a given that a layperson would
have understood from the terms of the Certificate that
Kenseth’s original VBG procedure (had it been performed
in 2005) would not have been covered by the plan. The
2005 Certificate twice states that “[a]ny surgical treat-
ment or hospitalization for the treatment of morbid
obesity” is a non-covered service. R. 34-6 at 13 (“Inpatient
Care”), 20 (“Surgical Services”). That language is straight-
forward, and although one has to read through general
44 No. 08-3219

provisions for inpatient care and surgical services to
find it, we may assume that a layperson facing in-patient
surgery would consult one or both sections and would,
in fact, discover the exclusion.
Far less straightforward is the exclusion for “[s]ervices
and/or supplies related to a non-covered benefit or
service, denied referral or prior authorization, or denied
admission.” R. 34-6 at 22. That provision was one of
twenty-three “General Limitations and Exclusions” set
out at the end of the “Specific Benefit Provisions” section
of the 2005 Certificate. To appreciate relevance of that
exclusion, one would have to understand that because
the 2005 Roux-en-Y procedure was intended to resolve
complications resulting from the 1987 VBG surgery, the
Roux-en-Y surgery itself was a service “related to” the
VBG, and because the VBG would be excluded from
coverage in 2005 as a surgery for morbid obesity (whatever
its status might have been in 1987), the Roux-en-Y proce-
dure was likewise excluded as a service related to a non-
covered service. But it is anything but certain that a
layperson would realize that treatment for complications
occurring some eighteen years after a procedure that
currently is not covered under the plan (although it
may have been covered previously) is treatment that
is “related to” the non-covered procedure. One might
rationally believe the “related to” exclusion to cover
only those medical services and supplies (e.g., hospitaliza-
tion, medication, and rehabilitation) that are necessarily
and contemporaneously provided with the non-covered
procedure, as opposed to services supplied decades
later to deal with the procedure’s after-effects. Compare
No. 08-3219 45

Fuller v. CBT Corp., 905 F.2d 1055, 1057 (7th Cir. 1990)
(suggesting in dicta that “even if a vasectomy reversal is
not a covered procedure, an illness incident to the proce-
dure—infection, complications, iatrogenic injury, what-
ever—would be covered” as a condition necessitating
medical treatment), with Carr v. Gates Health Care Plan,
195 F.3d 292, 295 (7th Cir. 1999) (reaching a contrary
conclusion, and noting that coverage for complications
resulting from non-covered procedure was not presented
in Fuller, nor was the broad discretionary authority of
the plan administrator to construe scope of plan). One
might also think that if the original procedure was
covered at the time it was performed, subsequent
remedial measures would also be covered, even if the
original procedure is no longer covered by the plan.
The ambiguity in Kenseth’s case would only have
been reinforced by the fact that Dean had already paid
for at least one prior procedure aimed at ameliorating
complications from the VBG procedure. Recall that
in September 2004, Kenseth underwent an endoscopic
procedure in which a balloon was used to dilate
her gastric outlet, which had become obstructed due to
hardening and shrinking (stenosis) over time. There
appears to be little, if any, question that the stenosis was
a complication of the VBG: that relationship was noted
by the treating physician, Dr. Christiansen, who in her
post-operative notes acknowledged that Kenseth had
undergone a VBG more than seventeen years earlier and
who described her “impression” as “[g]astric outlet
obstruction from the vertical banded gastroplasty.” R. 34
¶ 5; R. 34-5 at 32. Yet, Dean paid the $1,764.10 in costs
46 No. 08-3219

associated with this procedure (R. 34 ¶ 7; R. 34-5 at 41)
despite the exclusion in the 2004 Certificate for any
services related to a non-covered service.8 We do not
mean to suggest that Dean, having previously paid for
procedures related to the 1987 VBG, bound itself to pay
for all such procedures thereafter regardless of whether
the terms of the plan covered those procedures. Cf. Carr,
195 F.3d at 295 (not arbitrary and capricious for plan to
deny coverage for treatment related to gastric stapling

8
As we noted earlier, see supra n.2, it appears that Kenseth had
undergone a similar endoscopic procedure in December 2001
for which Dean also paid. R. 34 ¶3. The medical records re-
garding that procedure are also rife with notations of the
connection between the acid reflux and other symptoms she
was experiencing and the 1987 VBG procedure. R. 34-5 at 3, 7,
10, 12, 13, 14, 17. The evidence suggests that the exclusion in
the Dean plan for medical services related to morbid obesity
was in place in 2001 as well. See R. 30 (Paskey Dep.) at 6, 14
(indicating that surgery for morbid obesity had been
excluded from coverage since at least January 1996). However,
the district court did not consider those records because
Kenseth did not propose facts detailing the significance of these
procedures nor did she lay an appropriate foundation for the
interpretation of the records. 568 F. Supp. 2d at 1015-16. The
records may largely speak for themselves in terms of the
notice they provided to Dean of the link between Kenseth’s
condition and her prior VBG; but it is true that Kenseth pro-
posed no specific facts concerning the December 2001 procedure
as she had with the 2004 procedure. Compare R. 34 ¶ 3 with R. 34
¶¶ 4-8. We shall therefore confine our attention to the
2004 procedure.
No. 08-3219 47

surgery notwithstanding its agreement to pay for
another remedial procedure, where plan noted it
would pay for no future surgeries related to gastric sta-
pling). Our point instead is that the interplay between
the plan’s exclusion for procedures aimed at reversing
morbid obesity and any services “related” to such proce-
dures would if anything have been less obvious to
Kenseth once she had undergone one or more procedures
related to the VBG for which Dean paid.
In that respect, the addition of the term “complications”
in 2006 to the exclusion for services related to a non-
covered service or benefit may have helped clarify the
reach of the exclusion. A layperson might realize that a
complication can occur well after a non-covered surgery
or treatment, even years later. But that term was not
added to the exclusion until 2006, and the parties agree
that the 2005 rather than the 2006 Certificate applied to
Kenseth’s surgery and initial hospitalization in
December 2005.
This is not to say that we are quarreling with Dean’s
broad interpretation of the exclusion. As we have noted,
the Certificate itself grants Dean “the discretionary au-
thority . . . to construe the terms of this Certificate” and de-
clares that Dean’s construction “shall be final and binding
on all parties unless arbitrary and capricious.” R. 34-6 at 29;
see generally Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115, 109 S. Ct. 948, 956-57 (1989); and see, e.g., Carr, 195
F.3d at 296-97 (holding that it was not arbitrary and
capricious for benefits review committee to interpret
insurance exclusion for services provided “in connec-
48 No. 08-3219

tion with” a non-covered procedure, including gastric
stapling, to bar coverage for subsequent surgery
to address complications occurring years later as a result
of gastric stapling). No doubt in view of the broad discre-
tion granted to Dean, Kenseth herself has not asserted
a denial-of-benefits claim challenging Dean’s construc-
tion of the Certificate’s language. See 29 U.S.C.
§ 1132(a)(1)(B).
It is simply to say that reading the specific exclusion
for the surgical treatment of morbid obesity in pari
materia with the separate, general exclusion for any
services related to a non-covered service would not
necessarily yield obvious results for the layperson.9
A conscientious layperson, attempting to determine
whether the “related to” language applied to treatments

9
See generally Brian H. Allgood, Use of Federal Estoppel Doctrine
to Establish Coverage Under Group Health Ins. Policy, 43 A M . JUR .
P ROOF OF F ACTS T HIRD § 1 (1997) (“For a number of reasons,
determining the extent and scope of coverage under an em-
ployee group health insurance policy can prove extremely
difficult for the average insured. As is the case with most
insurance policies, the terms of the typical group health
policy are commonly complex, convoluted, and difficult for
the layperson to understand. Summary plan descriptions,
which are generally distributed to employees by the employer
or by the administrator of the employer’s plan, are designed to
facilitate the understanding of plan provisions, [but] even
these documents leave many coverage questions far from clear.
The confusion posed by the standard group health policy
is compounded by the regularity with which such plans are
amended or revised. . . .”) (footnotes omitted).
No. 08-3219 49

for complications occurring years after surgery for
morbid obesity, might be inclined to seek advice from
a plan representative as to the scope of this language.
But certainly the meaning of the exclusion for services
related to non-covered services is not so clear that it
would give the layperson cause to disregard any advice
she was given.
This leads us to a second respect in which the Certificate
was unclear: it does not identify a means by which a
participant or beneficiary may obtain an authoritative
determination as to whether a particular medical service
will be covered by the plan. As we have mentioned, Dean
concedes that there were means by which participants
could seek such a determination. But nowhere in the
Certificate is the appropriate path identified.
What the reader of the Certificate is advised to do is to
contact Dean’s customer service line if she is “unsure if
a service will be covered,” R. 34-6 at 11, suggesting that
a customer service representative will have any answers
that the reader cannot glean from the Certificate itself.
That invitation is unaccompanied by any sort of
warning alerting the reader that she cannot rely on what
a customer service representative might tell her, and
that Dean might later deny coverage for a service
the customer service representative assures her will be
covered. In short, a participant who, upon reading the
Certificate, has questions regarding the meaning of
the Certificate’s terms and their application to her particu-
lar condition and treatment, will reasonably believe that
Dean’s customer service representatives will be able
to answer those questions authoritatively.
50 No. 08-3219

Questions of that sort are no doubt commonplace
among participants. Kenseth, for example, would not
have found the term “Roux-en-Y” anywhere in the Certifi-
cate, nor would she have found provisions dealing
more generically with epigastric surgery. She would
instead have had to consult the plan’s provisions for
“Inpatient Care,” “Medical Services,” and “Surgical
Services,” and determine whether her forthcoming inpa-
tient surgery fell within the descriptions of covered
services but not within one of the specific or general
exclusions. And, as discussed, had she considered the
relevance of the exclusion for services “related to” other
non-covered services, she would have had to deter-
mine how broad that exclusion was. Many, if not most,
laypersons will have difficulty ascertaining which
benefit provisions apply to their medical conditions and
treatment and in construing multiple, independent provi-
sions of the plan together. See n.9, supra. Even those
who feel confident in their own construction of the plan
are likely to want confirmation from the insurer that
they have understood the plan terms correctly. They
will do exactly what Dean encouraged its participants
to do: call customer service.
Dean makes much of the fact that Kenseth did not
read the Certificate before calling customer service. That
might matter if the Certificate made clear that Kenseth’s
Roux-en-Y procedure was excluded from coverage, if
it warned her not to rely on what Dean’s customer
service agents told her about the plan’s coverage, or if
it revealed how Kenseth might obtain authoritative
advice on whether her Roux-en-Y procedure would be
No. 08-3219 51

covered by the plan. The Certificate did none of these
things. The one and only course of action it advised the
reader in terms of seeking additional information as to
whether a particular course of treatment was covered
by the Dean plan was to call Dean’s customer service
line. (Contacting her insurer was also the course of action
advised by the written instructions given to Kenseth by
her surgeon, a Dean-affiliated physician.) If Kenseth is
to be held to the terms of the Certificate, as Dean
argues, then Dean must be held to them as well. The
Certificate encouraged participants to contact Dean’s
customer service line before undergoing treatment to
determine whether the treatment would be covered by
the plan, and that is exactly what Kenseth did.
Kenseth evidently was not alone in pursuing that
course. Detmer, the customer service representative
with whom Kenseth spoke, estimated that up to fifty
percent of the thirty to forty calls that she handled on
an average day involved questions about coverage. R. 28
at 12, Detmer Dep. 43.1 0 From this we may readily infer

10
Dean contends that Detmer’s testimony on this point should
be disregarded, as Detmer said that she was only “just
guessing as an estimate” as to the percentage of her calls that
related to coverage. R. 28 at 12, Detmer Dep. 43. However, as
a custom er service representative with one year’s
experience, Detmer was in a position to know how many
coverage calls she fielded, and although she could not put a
firm number on the percentage, she nonetheless did venture
that “fifty percent, maybe less” of the calls related to coverage.
(continued...)
52 No. 08-3219

that plan participants and beneficiaries were following
the advice given in the Certificate and seeking answers
to coverage questions from Dean’s customer service
representatives. As the author of the Certificate, Dean
may of course be charged with the knowledge that
readers of the Certificate were given no written warning
not to rely on what customer service agents told them
about coverage and were given no advice as to how
they might otherwise obtain authoritative answers as to
which medical services were covered by the plan and
which were not. One may infer, in short, that Dean
knew that callers to its customer service line were likely
to rely on what the agents told them. See Eddy, 919 F.2d at
751 (finding “perhaps most significant[ ]” the fact that
insurer provided beneficiaries with written description
of policy conversion options that expressly invited benefi-
ciaries to telephone its conversion department with
questions).
These shortcomings in the Certificate—the uncertain
scope of the exclusion for services related to non-covered
services, the failure to identify a means of preauthorizing
medical services, and the invitation to contact Dean’s
customer service representatives with coverage questions
without any warning not to rely on the advice imparted
by such representatives—place into focus what Dean’s

10
(...continued)
R. 28 at 12, Detmer Dep. 43. Any doubts about the accuracy
of her estimate go to the weight rather than the admissibility
of her testimony.
No. 08-3219 53

customer service agents were trained to tell callers
with coverage questions and what Detmer did or did
not say to Kenseth. As discussed, the decisions from
this court which absolve fiduciaries of liability for negli-
gent misrepresentations made to plan participants pre-
sume that the written documents provided to the par-
ticipant are clear and that the agents who advise parti-
cipants and beneficiaries on behalf of the plan have been
properly selected, trained, and supervised. E.g., Frahm, 137
F.3d at 959-60; Schmidt, 128 F.3d at 547-48. In this case,
the Certificate was not clear in key respects, and as deci-
sions like Bowerman reveal, that lack of clarity can
render a plan fiduciary liable for the mistaken and/or
materially incomplete advice its agent has given to a
participant. 226 F.3d at 591.
The evidence supports the inference that Dean failed
to instruct its customer service agents to warn callers
that they could not rely on what the agents told them over
the phone in response to coverage-related questions.1 1

11
Both Detmer and Jean Breheny, a former Dean employee
who initially reviewed the admissions documentation from
Kenseth’s surgery and hospitalization, testified that they did not
warn Dean members not to rely on what they were orally
advised by Dean’s customer service representatives. R. 42 ¶¶ 22,
30. Below, Dean disputed the notion that their testimony
supported a global inference that no such warnings were
ever given by its customer service representatives. R. 42 ¶ 30.
However, Dean has cited no evidence that such warnings
were given or that its customer service representatives were
trained to give such warnings, and given our obligation to
(continued...)
54 No. 08-3219

When Kenseth sought advice about whether the Dean
plan would cover her Roux-en-Y procedure, she was told
that it would, subject to a $300 copayment. So far as the
record reveals, she was not warned that she could not
rely on this representation, that Dean might reach a
different conclusion after Kenseth had the surgery and
bills were submitted to Dean for payment, or that the
written terms of the Certificate controlled regardless of
what the customer service agent advised Kenseth
orally. Cf. Bonilla v. Principal Fin. Group, 281 F. Supp. 2d
1106, 1116-17 (D. Az. 2003) (insurer not estopped from
denying coverage for surgery and hospitalization it pre-
certified, when insurer’s agent orally advised representa-
tives of doctor and hospital that pre-certification did not
guarantee payment but rather that payment would
depend on plan provisions, and callers were asked, “Do
you understand this disclaimer?”); England v. John Alden
Life Ins. Co., 846 F. Supp. 798, 801 (W.D. Mo. 1994) (insurer
did not breach fiduciary duty by denying coverage for
plaintiff’s hospitalization after twice pre-certifying plain-
tiff’s hospital admission as appropriate, where insurer
sent plaintiff written pre-certification notices warning that
certification “does not guarantee payment of benefits”).
Dean suggests that no such warnings were necessary,
pointing out that the Certificate contained an “Oral State-
ments” provision stating:

11
(...continued)
construe the facts in Kenseth’s favor, we believe it a fair infer-
ence on this record that such warnings were not given as
a matter of course.
No. 08-3219 55

No oral statement of any person shall modify or
otherwise effect [sic] the benefits, limitations, exclu-
sions, and conditions of this contract; convey or void
any coverage; increase or reduce benefits described
within this Policy; or be used in the prosecution or
defense of a claim under this Plan.
R. 34-6 at 29. A lawyer would understand that this provi-
sion barred any oral modifications to Dean’s plan. But we
do not think that a layperson would understand this to
mean that she could not rely on what Dean’s customer
service agent told her in response to a question about
coverage. Kenseth, after all, was not calling Dean’s cus-
tomer service line with the intent to request a modifica-
tion of the Certificate’s provisions, cf. Tegtmeier, 390 F.3d at
1048 (plaintiff sought to create application “hold” proce-
dure which did not exist under clear written terms of
pension plan); she was calling, instead, to find out what the
Certificate provided with respect to her forthcoming
surgery. In effect, she was asking the customer service
agent to tell her what the Certificate said. One might
reasonably conclude that Dean, having invited such
inquiries, and being on notice that its members regularly
called its customer service line to pose such inquiries,
became obligated to warn callers that they could not
treat the oral representations of its agents as authorita-
tive. See Anweiler v. Am. Elect. Power Serv. Corp., supra, 3
F.3d at 991 (fiduciary’s duty to communicate material
information “exists when a beneficiary asks for informa-
tion, and even when he or she does not”) (citing Eddy,
919 F.2d at 751); Kalda v. Sioux Valley Physician Partners,
Inc., supra, 481 F.3d at 644 (fiduciary bears duty to inform
“when it knows that silence may be harmful”); Bixler v.
56 No. 08-3219

Cent. Pa. Teamsters Health & Welfare Fund, supra, 12 F.3d at
1300 (same); see also R ESTATEMENT (SECOND) OF T RUSTS
§ 173, comment d.
The factfinder might also conclude that Dean further
breached its fiduciary obligations in failing to train its
customer service representatives to advise callers like
Kenseth how they might obtain definitive advice as to
whether forthcoming medical treatments would be
covered by the policy. As we have pointed out, nowhere
in the Certificate is the reader given any suggestion that
there exists a course of action other than calling Dean’s
customer service representatives in order to determine
whether an in-plan medical service will be covered by
the policy. See Eddy, 919 F.2d at 752 (noting insured who
was given incorrect information by insurer over tele-
phone “did not have a duty to try and try again until
he received correct and complete information”). Nor, so
far as the record reveals, are callers to Dean’s customer
service line told how they might go about seeking such
a determination. They are instead left to guess as to how
they may obtain coverage information that they can rely
on, and for that matter whether they need to do so.1 2

12
The (separate) Member Handbook provided to participants
in the Dean Health Plan did admonish members that “[i]f you
have any questions about coverage under your specific policy,
always refer to the Member Certificate and Schedule of
Benefits or other policy documents issued to you,” R. 34-7 at 4,
and similarly that “[i]t is important to always look at both the
Member Certificate and Schedule of Benefits to determine
(continued...)
No. 08-3219 57

Dean’s insistence that Kenseth could have found out
everything she needed to know simply by reading the
Certificate rather than relying upon what she was told
by Dean’s customer service representative treats its
relationship with her as an arm’s-length, buyer-beware
sort of relationship. It assumes that any layperson should
be able to confidently construe the myriad benefit provi-
sions and exclusions set forth in the Certificate and apply
those to her own medical situation. And it assumes that
she will not take literally the Certificate’s invitation to
call Dean’s customer service line to resolve any coverage
matters about which she is unsure.
But this was not an arm’s-length relationship. Dean was
a fiduciary, and in that capacity it owed Kenseth a duty to
administer the plan solely in her interest, not its own.
§ 1104(a)(1)(A)(i). In this case, the factfinder could con-
clude that this duty included an obligation to warn
Kenseth, whose call to customer service it had invited,
that she could not rely on what its customer service

12
(...continued)
benefits covered under your plan,” R. 34-7 at 19. Detmer
testified that it was her practice to give the same advice when
callers to Dean’s customer service line wanted information
beyond what she or a supervisor could tell them, R. 28 at 12,
Detmer Dep. 43. But, of course, the Certificate itself encouraged
members with questions or doubts about coverage to call
customer service, R. 34-6 at 3, 11, and such callers were not
warned that they could not rely on what they were told by
Dean’s customer service representatives, R. 42 ¶¶ 22, 30; n.11,
supra. See Eddy, 919 F.2d at 751-52.
58 No. 08-3219

agent told her about coverage for her forthcoming
surgery and hospitalization. And, given that Dean
does not dispute that there was a means by which she
could have obtained coverage information that she could
have relied on, the factfinder could further conclude
that Dean was also obliged to tell her by what means she
could obtain that information.1 3
These facts, construed favorably to Kenseth, lead us
to conclude that a factfinder could reasonably find that
Dean breached the fiduciary obligation that it owed to
Kenseth as the party charged with discretionary authority
to construe the terms of her health plan and to grant or
deny her claim for benefits—including the duty to
provide her with complete and accurate information.
We may assume for the sake of argument that Dean
simply could have told HMO members with questions
about the scope of their insurance coverage to read the
Certificate for themselves. Cf. Chojnacki v. Georgia-Pacific
Corp., supra, 108 F.3d at 817 (not misleading for human
resources employee to refer plaintiff with questions
regarding “tin parachute” plan for lump-sum severance
payments to plan document itself; indeed, “that may
have been safest answer,” as opposed to speculating

13
A prudent insurer might also have trained its customer
service representative to alert a caller like Kenseth to the types
of circumstances that likely would have a bearing on coverage
for her treatment including, for example, whether the treat-
ment was related to a non-covered service. But we need not
explore whether it was obliged to give this type of advice to
callers.
No. 08-3219 59

about merits of plaintiff’s entitlement to such benefits).
It did not. Instead, the Certificate itself encouraged mem-
bers with questions about coverage to call Dean’s
customer service line before services were rendered. That
is what Kenseth’s in-plan physician also advised
Kenseth to do. And it is what she did. Kenseth was told
that her surgery would be covered. But she was not
warned that this advice was not binding and that
Dean might later reject coverage for her surgery and
hospitalization based on the additional information it
acquired. Nor was she told how she might otherwise
obtain a definitive decision, in advance of her surgery,
as to whether Dean would cover it.

3. The factfinder could find that Kenseth was harmed
The factfinder might also conclude that Kenseth was
injured by the breach of fiduciary duty. As we noted in
our summary of the facts, Kenseth had been treated for
the complications resulting from her VBG surgery since
2001. She had, for example, undergone one or more
dilations of her gastric outlet to address the stenosis of
the outlet, and although the ameliorative effects of those
procedures and the other treatments she was receiving
were neither complete nor permanent, the record
suggests that she could have continued to pursue
such treatments for at least some additional period of
time beyond December 2005. That is the upshot of
Dr. Huepenbecker’s declaration, in which he averred that
although the Roux-en-Y procedure was the best option
to resolve the complications Kenseth was experiencing,
60 No. 08-3219

it was not necessary that Kenseth have the procedure
in 2005. R. 42 ¶ 40; see R. 34-3 at 3 ¶ 22. 1 4 Even if Kenseth
were unable to show that a postponement of the
surgery would have enabled her to obtain alternative
insurance coverage that would have reimbursed her for
the procedure, she might be able to show that she could
have undergone the same surgery elsewhere for less
money, postponed the surgery until she and her
husband had saved the money to pay for the procedure,
or pursued other treatments.
Whether Kenseth’s injury is one that may be remedied
by any of the equitable relief authorized by ERISA is a
separate question that we take up in the next section of
our analysis. But she has, at the least, presented evidence
that would permit the factfinder to conclude that she
was harmed by Dean’s alleged breach of fiduciary duty.

4. It is not clear whether Kenseth seeks a remedy that
ERISA authorizes for the asserted breach of fiduciary
duty
An issue that the parties have not yet addressed is
whether there is any form of relief that Kenseth is
seeking for Dean’s alleged breach of fiduciary duty that
ERISA actually authorizes. Kenseth’s complaint suggests

14
We do note that the record is not one-sided on this point, as
Kenseth in the formal grievance she filed with Dean asserted
that her December 2005 Roux-en-Y procedure was “very
necessary” to her at that time. R. 43 ¶ 61.
No. 08-3219 61

that she is seeking compensatory relief for the harm
resulting from the alleged breach. But that type of relief
is not authorized by ERISA.
The relevant provision of ERISA is section 1132(a)(3). As
we have discussed, section 1104(a)(1)(B) imposes a duty
of care upon the ERISA fiduciary. Section 1109(a)
imposes personal liability on the fiduciary whose breach
of the obligations imposed by the statute results in a loss
to the plan, and further subjects the fiduciary to “such
other equitable or remedial relief as the court may deem
appropriate . . . .” Pursuant to section 1132(a)(2), a plan
participant or beneficiary (among others) may
commence a civil action for appropriate relief under
section 1109(a), but she may do so only in a representa-
tive capacity on behalf of the plan, not in her own be-
half. See Varity Corp. v. Howe, supra, 516 U.S. at 515, 116 S.
Ct. at 1079 (section 1132(a)(2) “does not provide a remedy
for individual beneficiaries”); Mass. Mut. Life Ins. Co. v.
Russell, 473 U.S. 134, 140-44, 105 S. Ct. 3085, 3089-91
(1985); Magin v. Monsanto Co., 420 F.3d 679, 687 (7th Cir.
2005); Steinman v. Hicks, 352 F.3d 1101, 1102 (7th Cir. 2003);
Plumb v. Fluid Pump Serv., Inc., 124 F.3d 849, 863 (7th Cir.
1997). Kenseth has filed suit to recover for the injuries that
Dean has caused to her rather than to the plan as a whole.
She therefore must be suing under the statute’s catch-all
provision, section 1132(a)(3). That provision authorizes a
civil suit by a plan participant or beneficiary (and also a
fiduciary) “(A) to enjoin any act or practice which violates
any provision or this subchapter or the terms of the plan,
or (B) to obtain other appropriate equitable relief (i) to
redress such violations or (ii) to enforce any provisions of
62 No. 08-3219

this subchapter or the terms of the plan[.]” As its terms
suggest, section 1132(a)(3) does permit a plan participant
to seek redress in her own behalf for a breach of fiduciary
duty. E.g., Steinman, 352 F.3d at 1102. However, the lan-
guage of this section also imposes an important limitation
on the type of relief that is available: it allows only injunc-
tive and “other appropriate equitable relief”; compensatory
damages and other forms of legal relief are beyond the
scope of the relief authorized. Mertens v. Hewitt Assocs., 508
U.S. 248, 113 S. Ct. 2063 (1993); see also, e.g., Buckley Dement,
Inc. v. Travelers Plan Administrators of Ill., Inc., 39 F.3d 784,
787-88 (7th Cir. 1994).
The equitable relief authorized by section 1132(a)(3)
includes “those categories of relief that were typically
available in equity . . . .” Mertens, 508 U.S. at 256, 113 S. Ct.
at 2069 (emphasis in original). Injunctions, mandamus, and
restitution are among those categories of relief. Ibid.
Restitution, which holds out the prospect of monetary
relief to the plaintiff, can be either legal or equitable in
nature. Mondry v. Am. Fam. Mut. Life Ins. Co., supra, 557
F.3d at 806 (citing SEC v. Lipson, 278 F.3d 656, 663 (7th
Cir. 2002)). Given that only equitable remedies are avail-
able under section 1132(a)(3), restitution is permitted only
when it may accurately be characterized as an equitable
remedy. Great-West Life & Annuity Ins. Co. v. Knudson,
supra, 534 U.S. at 212-18, 122 S. Ct. at 714-17. The classic
example is when the defendant has wrongfully obtained
or withheld the plaintiff’s money or property, and a
constructive trust or equitable lien is imposed to ensure
that the defendant disgorges his ill-gotten gain and the
plaintiff receives that to which he is entitled. Id. at 213-14,
No. 08-3219 63

122 S. Ct. at 714-15; see also Solis v. Current Dev. Corp., supra,
557 F.3d at 777-78; Mondry, 557 F.3d at 806-07; Health Cost
Controls of Ill., Inc. v. Washington, 187 F.3d 703, 710-11 (7th
Cir. 1999); see also Amschwand v. Spherion Corp., 505 F.3d
342, 347-48 (5th Cir. 2007). But Kenseth has not alleged,
and there is no evidence in the record suggesting, that
Dean is holding money or property that rightfully
belongs to her.
Hints may be found in certain paragraphs of Kenseth’s
complaint suggesting that Dean was wrong in refusing
to cover her Roux-en-Y procedure and attendant hospital-
ization, R. 8 ¶¶ 27-28, 31; but this sort of allegation
will not support an award of equitable restitution. This
is, in effect, an allegation that Dean erred in denying
Kenseth’s claim for insurance benefits. However, a denial-
of-benefits claim may only be pursued under section
1132(a)(1)(B). Varity, 516 U.S. at 515, 116 S. Ct. at 1079;
Mondry, 557 F.3d at 804-05. As we have noted, the absence
of such a claim from Kenseth’s complaint is almost cer-
tainly explained by the broad discretion that Dean
enjoys in construing the terms of the Certificate, which
in turn would necessitate a showing that its decision to
deny Kenseth’s claim was arbitrary and capricious. Not-
withstanding the obstacles to relief under section
1132(a)(1)(B), Kenseth may not obtain comparable relief
under the guise of a claim for breach of fiduciary duty.
See Varity, 516 U.S. at 513-15, 116 S. Ct. at 1078-79.
The relief that Kenseth truly seems to seek is relief that
is legal rather than equitable in nature. Her complaint, for
example, alleges that she has suffered a pecuniary loss
64 No. 08-3219

and other consequential damages as a result of Dean’s
actions. R. 8 ¶¶ 32-33. This would be consistent with our
earlier discussion of the ways in which a jury might
find that Kenseth was harmed by Dean’s alleged breach of
fiduciary duty. Supra at 59-60. But this is the sort of make-
whole relief that is not typically equitable in nature and
is thus beyond the scope of relief that a court may award
pursuant to section 1132(a)(3). See Mertens, 508 U.S. at
255, 113 S. Ct. at 2068; Amschwand, 505 F.3d at 347.
This is a matter that will have to be sorted out on re-
mand. As we have noted, the parties have not briefed this
issue, and it is possible, notwithstanding the narrow
scope of relief available under section 1132(a)(3), that
Kenseth may be able to identify a form of equitable relief
that is appropriate to the facts of this case. If she cannot,
then she will have failed to make out a claim on which
relief may be granted, and the claim may be dismissed on
that basis. Health Cost Controls v. Skinner, supra, 44 F.3d
at 537-38.
Assuming that Kenseth can identify a form of equitable
relief authorized by the statute, the district court shall
conduct such further proceedings as are consistent with
this opinion. Kenseth herself did not file a cross-motion
for summary judgment, and although many if not most
of the facts concerning the alleged breach of fiduciary
duty appear to be undisputed and might have entitled
Kenseth to at least partial summary judgment on this
claim, given that Dean was never placed on notice that
this was a possibility, we will leave the necessity of a trial
on the merits of the claim as a second subject to be
sorted out on remand.
No. 08-3219 65

III.
We affirm the district court’s decision to grant sum-
mary judgment to Dean on Kenseth’s claims for equitable
estoppel and for the purported violation of Wisconsin’s
limit on exclusions for preexisting conditions. However,
we vacate the grant of summary judgment as to Kenseth’s
claim for breach of fiduciary duty and remand for a
determination as to whether Kenseth is seeking any
form of equitable relief that is authorized by 29 U.S.C.
§ 1132(a)(3) and, if so, for further proceedings on that
claim as are consistent with this opinion. Kenseth shall
recover her costs of appeal.
A FFIRMED IN P ART, R EVERSED IN P ART,
and R EMANDED

6-28-10