UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-60639
Estate of LARRY M BRATTON,
Joann M Bratton, executrix
Plaintiff - Appellee,
VERSUS
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA; AIG LIFE
COMPANIES; ITT THOMPSON INDUSTRIES INC; ITT GROUP ACCIDENT
INSURANCE PROGRAM
Defendants - Appellants.
Appeal from the United States District Court
For the Northern District of Mississippi
June 20, 2000
Before JONES, BARKSDALE and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
The plaintiff, the Estate of Larry Bratton, through JoAnn
Bratton, Executrix, brought this suit under § 502(a)(1)(B) and §
502(a)(3) of the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1132(a)(1)(B) and (a)(3), to recover benefits
allegedly due under an optional voluntary group accident disability
insurance policy offered to salaried employees of ITT Thompson
1
Industries, Inc. (“ITT Thompson”) and underwritten and administered
by a health insurer, National Union Fire Insurance Company of
Pittsburgh, Pennsylvania (“NUFI”).1 Mr. Bratton was employed by ITT
Thompson in Mississippi from February 1971 to August 20, 1976.
Shortly after ITT Thompson terminated Mr. Bratton’s employment, he
was severely injured in an automobile accident on August 21, 1976.
As a result, Mr. Bratton filed claims for and recovered benefits
under other optional plans in which he had properly enrolled as an
ITT Thompson employee, including a long-term disability benefit
program underwritten by Travelers Insurance Company and an
accidental death and dismemberment coverage provided by the
Equitable Life Assurance Society. On January 22, 1996, over
nineteen years after his August 21, 1976 accident, Mr. Bratton
caused a notice of claim to be submitted to NUFI for disability
benefits under the optional accident disability plan, outside the
time limits set in the policy, and NUFI therefore denied his claim.2
1
The administrative record reflects that NUFI issued the
master policy to International Telephone and Telegraph Corporation,
et. al. (“ITT Corp.”). It is undisputed that ITT Thompson
employees were covered and offered optional coverage under the NUFI
policy.
2
On January 19, 1996, Mr. Bratton wrote a letter to Mr.
Richard Petrocelli, Director of Benefits, ITT Automotive, Inc., at
Auburn Hills, Michigan, asserting that when his accident occurred
on August 21, 1976 he was employed by ITT Thompson, he was enrolled
in the NUFI optional 24-hour accident coverage, and therefore he
was entitled to benefits under that policy. He stated that during
the latter part of 1976, when he inquired by phone of an ITT
personnel employee about benefits for loss of use of feet under the
dismemberment coverage, he was told that none were available unless
both feet had been severed, and that he was not informed of any
2
During a bench trial, the district court, over defendants’
objections, allowed the Estate of Larry Bratton to introduce
evidence extraneous to the administrative record, including
testimony from JoAnn M. Bratton, the widow of Mr. Bratton and
Executrix of his estate, regarding the merits of the claim, such as
her conversations with Mr. Bratton prior to his accident about their
agreement that he should enroll for the coverage in question, her
presence during his telephone conversation with an ITT Thompson or
International Telephone and Telegraph Corporation, et. al. (“ITT
Corp.”) employee about dismemberment coverage after the accident,
Mr. Bratton’s statements to her following the telephone
conversation, and her calculations and inferences that his final pay
check stub showed the deduction of an amount for group insurance
that included premiums for the disputed coverage. Rendering
other coverage that might become available. On January 22, 1996,
Mr. Bratton’s attorney wrote to Mr. Petrocelli, alleging
essentially the same facts and asserting a claim for disability
benefits under the NUFI policy. The agent for the plan
administrator, NUFI, received Mr. Bratton’s claim indirectly from
ITT, along with all of Mr. Bratton’s enrollment cards in ITT’s
possession, and data from Mr. Bratton’s attorney. The
administrative record contains no enrollment forms signed by Mr.
Bratton for the type of coverage in question, and the data on Mr.
Bratton’s last pay check stub pertaining to his payroll deductions
for optional coverages is ambiguous. On July 24, 1996, the acting
plan administrator, after gathering evidence and evaluating the
claim, denied it for the following reasons: “[O]n August 21, 1976,
Mr. Bratton suffered an injury in a motor vehicle crash. However,
no claim for benefits had been filed prior to January 22, 1996. We
had this matter reviewed by local counsel, who advises that Mr.
Bratton’s claim for benefits is barred by the Statutes of
Limitation. Therefore, no benefits are payable under this policy.”
3
judgment for the Estate, the district court rested its decision on
an equitable estoppel theory crucially based on findings of facts
inferred from the trial evidence extrinsic to the administrative
record. The district court inferred from JoAnn Bratton’s
calculations and its own based on Mr. Bratton’s final pay check stub
and cost of insurance data in ITT group insurance booklets
introduced by the plaintiff that ITT Thompson had regularly deducted
from Mr. Bratton’s pay checks amounts corresponding to the cost of
the optional accident disability insurance for Mr. Bratton with
NUFI. The district court further found that, following the
termination of Mr. Bratton’s employment by ITT and his accident on
August 21, 1976, he was led to believe during a telephone
conversation, by an ITT personnel employee, whom the court inferred
was acting as an ERISA fiduciary with respect to the group insurance
in question, that his disability was not covered under the optional
accident disability policy because he did not suffer severance of
a limb.3 For reasons stated in its memorandum opinion, the district
3
The group accident plans available to ITT employees with NUFI
provided for two types of coverages, (1) “business travel accident”
coverage afforded to salaried employees of ITT while on business of
ITT, and (2) optional “24-hour accident protection” covering
accidents whether on or off the job, including accidents occurring
in the home or while traveling. Both plans provided dismemberment
coverage for actual severance of limbs. The entire cost of
“business travel accident” coverage was borne by ITT. The optional
“24-hour” coverage required that the employee complete and file an
enrollment form and pay premiums through payroll deductions.
Because Mr. Bratton was not a salaried employee on business of ITT
at the time of his accident, he was not entitled to “business
travel accident” coverage.
4
court rendered its final judgment ordering that the plaintiff
recover of the defendants $258,394.26 ($51,000 in principal plus
prejudgment interest from August 21, 1977) with interest and costs.
The defendants appealed.
I. STANDARDS AND PROCEDURES OF JUDICIAL REVIEW
OF ERISA PLAN ADMINISTRATOR’S DENIAL OF BENEFITS CLAIMS
ERISA provides federal courts with jurisdiction to review
benefit determinations by fiduciaries or plan administrators. See
29 U.S.C. § 1132(a)(1)(B). Consistent with established principles
of trust law, a denial of benefits challenged under § 1132(a)(1)(B)
is to be reviewed under a de novo standard unless the benefit plan
gives the administrator or fiduciary discretionary authority to
determine eligibility for benefits or to construe the terms of the
plan. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113-
15 (1989). An administrator, fiduciary or trustee is a fiduciary
to the extent that he exercises any discretionary authority or
control. See id. at 113 (citing 29 U.S.C. § 1002(21)(A)(i)). If
a benefit plan gives discretion to an administrator or fiduciary
who is operating under a conflict of interest, that conflict must
be weighed as a factor in determining whether there is an abuse of
discretion. See id. at 115.4
4
When an administrator has discretionary authority with
respect to the decision at issue, the standard of review should be
one of abuse of discretion. See Vega v. National Life Ins.
Services, 188 F.3d 287, 295 (5th Cir. 1999) (en banc). The
existence of a conflict is a factor to be considered in determining
5
The plan administrator has the obligation to identify the
evidence in the administrative record and the claimant must be
afforded a reasonable opportunity to contest whether that record is
complete. See Vega v. National Life Ins. Services, 188 F.3d 287,
295, 299 (5th Cir. 1999) (en banc) (citing Barhan v. Ry-Ron Inc.,
121 F.3d 198, 201-02 (5th Cir. 1997)). Once the administrative
record has been determined, the district court may not stray from
it but for certain limited exceptions, such as the admission of
evidence related to how an administrator has interpreted terms of
the plan in other instances, and evidence, including expert
opinion, that assists the district court in understanding the
medical terminology or practice related to a claim. See id. at
299.5 Thus, the administrative record consists of relevant
information made available to the administrator prior to the
whether the administrator abused its discretion in denying a claim.
See id. at 297. The greater the evidence of conflict on the part
of the administrator, the less deferential the abuse of discretion
standard will be. See id. at 299. Under this “sliding scale”
standard, the court applies the abuse of discretion standard,
giving less deference to the administrator in proportion to the
administrator’s apparent conflict. See id. at 296.
5
Further, as a safeguard against possible abuse or mistake,
the claimant’s lawyer may add additional evidence to the
administrative record simply by submitting it to the administrator
in a manner that gives the administrator a fair opportunity to
consider it. See Vega, 188 F.3d at 300. If the claimant submits
additional information to the administrator, and requests the
administrator to reconsider its decision, that additional
information should be treated as part of the administrative record.
See id. at 300 (citing Wildbur v. ARCO Chem. Co., 974 F.2d 631,
634-35 (5th Cir. 1992)).
6
complainant’s filing of a lawsuit and in a manner that gives the
administrator a fair opportunity to consider it. See id. If an
administrator has made a decision denying benefits when the record
does not support such a denial, the court may, upon finding an
abuse of discretion on the administrator’s part, award the amount
due on the claim and attorney’s fees. See id. at 302 (citing
Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1014 (5th
Cir. 1992)).
II. DISCUSSION
Our review of the administrative record reveals that NUFI
issued the master group optional voluntary accident policy to ITT
Corp; that the policy designated NUFI as “the Company” and ITT
Corp. as “the Holder”; and that neither ITT Corp., nor ITT
Thompson, nor any of their affiliates or employees had or exercised
any authority under the policy to act as an administrator or a
fiduciary.6 Further, the policy was administered solely by NUFI
and its affiliate, AIG Life Companies, and, under the terms of the
6
Under ERISA § 3(21)(A), a person is a fiduciary with respect
to a plan to the extent that person (1) exercises any discretionary
authority or discretionary control respecting management of such
plan or exercises any authority or control respecting management or
disposition of its assets; (2) renders investment advice for a fee
or other compensation, direct or indirect, with respect to any
monies or other property of such plan, or has any authority or
responsibility to do so; or (3) has any discretionary authority or
discretionary responsibility in the administration of such plan.
See 29 U.S.C. § 1002(21)(A) (1999). The administrative record does
not indicate that any ITT company or employee had or exercised any
such authority or function.
7
policy and ERISA, the insurer, NUFI, was the designated plan
administrator.7 Consequently, we find no basis in law or the
administrative record for the district court’s conclusion that the
ITT employee who discussed dismemberment coverage with Mr. Bratton
by telephone was acting as a fiduciary with respect to the NUFI
policy.8
For this reason, and because the district court strayed far
outside the administrative record by conducting its own trial de
novo on the merits of the claim, we can give no deference to its
7
Under ERISA § 3(16)(A) the term administrator means the
person specifically so designated by the terms of the instrument
under which the plan is operated. See 29 U.S.C. § 1002 (16)(A).
The NUFI policy, in effect, designated the insurer the plan
administrator by requiring claimants to file written notices of
claims and proofs of loss with the insurer, requiring insurer to
provide claimants with proof of loss forms, granting the insurer
the right and opportunity to have physical examinations or
autopsies performed on the subject of the claim, and vesting the
insurer with exclusive authority to pay or deny claims. See Vega
v. National Life Ins. Services, 145 F.3d 673, 677, n.24 (5th Cir.
1998), abrogated on other grounds but implicitly approved on this
point, 188 F.3d 287, 295 (5th Cir. 1999)(en banc).
8
In UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 379
(1999), the Supreme Court held that a state law or agency rule
allowing a policyholder-employer to be deemed an agent of the
insurer-plan administrator in administering group insurance
policies “relate[s] to” ERISA plans and, thus is preempted by
ERISA. The Court explained that “deeming the policyholder-employer
the agent of the insurer would have a marked effect on plan
administration. It would ‘forc[e] the employer, as plan
administrator, to assume a role, with attendant legal duties and
consequences, that it has not undertaken voluntarily’; it would
affect ‘not merely the plan's bookkeeping obligations regarding to
whom benefits checks must be sent, but [would] also regulat[e] the
basic services that a plan may or must provide to its participants
and beneficiaries.’” Id. (citing the United States’ amicus curiae
brief at 27).
8
factual findings or application of equitable estoppel. Instead, we
proceed to review the plan administrator’s decision based upon the
administrative record in accordance with Vega and the authorities
upon which it relies.
The denial of benefits to Mr. Bratton by the NUFI plan
administrator challenged by the plaintiff under § 1132(a)(1)(B)
must be reviewed under a de novo standard because the NUFI optional
voluntary accident disability policy does not give the
administrator discretionary authority to determine eligibility for
benefits or to construe the terms of the plan. See Bruch, 489 U.S.
at 115. As the Supreme Court indicated in Bruch, the court
therefore should review the claim “as it would...any other contract
claim — by looking to the terms of the plan and other
manifestations of the parties’ intent.” Id. at 112-13 (citing
Connery v. Phoenix Steel Corp., 249 A.2d 866 (Del. 1969); Atlantic
Steel Co. v. Kitchens, 187 S.E.2d 824 (Ga. 1972); Sigman v. Rudolph
Wurlitzer Co., 11 N.E.2d 878 (Ohio Ct. App. 1937)). For factual
determinations under ERISA plans, however, we have held that
federal courts owe due deference to an administrator’s findings
and, for their review, the abuse of discretion standard is
appropriate. See Southern Farm Bureau Life Ins. Co. v. Moore, 993
F.2d 98, 101 (5th Cir. 1993); Pierre v. Connecticut Gen. Life Ins.
Co., 932 F.2d 1552, 1562 (5th Cir. 1991).
Applying the foregoing standards to the administrative record,
9
we conclude that the administrator’s denial of the plaintiff’s
claim should be upheld as being consistent with a correct
interpretation of the insurance contract and a reasonable
determination of facts based on the administrative record.
Although the administrator may have misspoken in stating that the
claim was barred by the “Statutes of Limitation” rather than the
time limits set in the policy, her finding that “no claim for
benefits had been filed prior to January 22, 1996,” over nineteen
years after Mr. Bratton’s August 21, 1976 accident, shows that her
decision was solidly based upon the record and consistent with a
correct reading of the policy provisions for filing a notice of
claim and a proof of loss.
ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), provides a
contract based cause of action to participants and beneficiaries to
recover benefits, enforce rights, or clarify rights to future
benefits, under the terms of an employee benefit plan. In
connection with this statutory recognition of contractual benefits
rights, Section 503 of ERISA, 29 U.S.C. § 1133, in accordance with
the regulations of the Secretary of Labor, sets certain minimum
requirements for the claims procedures that plans are required to
follow in processing benefits claims brought by participants and
beneficiaries. See Tolle v. Carroll Touch, Inc., 23 F.3d 174, 180
(7th Cir. 1994).
Pursuant thereto, the Secretary has promulgated regulations to
10
provide minimum requirements for employee benefit plan procedures
pertaining to claims by participants and beneficiaries (claimants)
for plan benefits, consideration of such claims, and review of
claim denials. See 29 C.F.R. § 2560-503-1 (1999). The regulations
require that every employee benefit plan shall establish and
maintain reasonable claims procedures. See 29 C.F.R. § 2560-503-
1(b) (1999). A reasonable claims procedure must, inter alia, be
described in the summary plan description, not be administered or
contain any provision so as to unduly inhibit or hamper the filing
or processing of claims, and provide for a procedure for informing
participants in a timely fashion of the time periods for decisions
on claims made and the time periods for making appeals and
receiving decisions thereon. Id. When benefits under a plan are
provided or administered by an insurance company, the claims
procedure pertaining to such benefits may provide for filing of a
claim for benefits with and notice of decision by such company.
See 29 C.F.R. § 2560-503-1(c) (1999).
A claim is filed when the requirements of a reasonable claim
filing procedure of a plan have been met. See 29 C.F.R. § 2560-
503-1(d) (1999). If a reasonable procedure for filing claims has
not been established by the plan, a claim shall be deemed filed
when a written or oral communication is made by the claimant or the
claimant’s authorized representative reasonably calculated, in the
case of a plan provided or administered by an insurance company, to
11
bring the claim to the attention of the person or organizational
unit which handles claims for benefits under the plan or any
officer of the insurance company, insurance service or similar
organization. See 29 C.F.R. § 2560-503-1(d)&(d)(3) (1999).
The NUFI policy sets forth a reasonable claims procedure which
meets the minimum requirements of the Secretary’s regulations. The
policy’s “uniform provisions,” in pertinent part, state:
1. Notice of Claim: Written notice of claim must be given
to the Company within twenty days after the occurrence or
commencement of any loss covered by the policy, or as
soon thereafter as it reasonably possible. Notice given
by or on behalf of the claimant to the National Union
Fire Insurance Company of Pittsburgh, Pa., or to any
authorized agent of the Company, with information
sufficient to identify the Insured Person or the Insured
Family Member shall be deemed notice to the Company.
2. Claim Forms: The Company upon receipt of a notice of
claim, will furnish to the claimant such forms as are
usually furnished by it for filing proofs of loss. If
such forms are not furnished within fifteen days after
the giving of such notice the claimant shall be deemed to
have complied with the requirements of the policy as to
proof of loss upon submitting, within the time fixed in
the policy for filing proofs of loss, written proof
covering the occurrence, the character and the extent of
the loss for which claim is made.
3. Proof of Loss: Written proof of loss must be furnished
to the Company at its said office in case of claim for
loss for which this policy provides any periodic payment
contingent upon continuing loss within ninety days after
the termination of the period for which the Company is
liable and in case of claim for any other loss within
ninety days after the date of such loss. Failure to
furnish such proof within the time required shall not
invalidate nor reduce any claim if it was not reasonably
possible to give proof within such time, provided such
proof is furnished as soon as reasonably possible.
* * *
7. Legal Actions: No action at law or in equity shall be
brought to recover on the policy prior to the expiration
of sixty days after written proof of loss has been
12
furnished in accordance with the requirements of this
policy. No such action shall be brought after the
expiration of three years after the time written proof of
loss is required to be furnished.
The NUFI policy’s optional 24-hour accident coverage provided
a permanent total disability indemnity (not applicable to insured
family members) as follows:
When as the result of injury and commencing within one
year of the date of the accident an injured Person is
totally and permanently disabled and prevented from
engaging in each and every occupation or employment for
compensation of profit for which he is reasonably
qualified by reason of his education, training or
experience, the Company will pay, provided such
disability has continued for a period of twelve
consecutive months and is total, continuous and permanent
at the end of this period, the Principal Sum less any
other amount paid or payable under Accidental Death and
Dismemberment Indemnity as the result of the same
accident.
Assuming that Mr. Bratton was properly enrolled under the NUFI
optional voluntary accident policy on the date of his August 21,
1976 accident, and assuming that commencing within one year of his
accident, he became totally and permanently disabled as defined by
the policy, Mr. Bratton was required to give NUFI timely written
notice of claim and timely written proof of loss. In order to give
notice of claim, Mr. Bratton was required to give written notice to
the company within twenty days after the occurrence or commencement
of any loss governed by the policy or as soon thereafter as
reasonably possible. If Mr. Bratton was properly enrolled for
coverage and was rendered totally and permanently disabled by his
August 21, 1976 accident, his loss would have commenced on the last
13
day of the first year following the accident if it had continued
for one year thereafter. In such case, Mr. Bratton would have been
required to give the company written notice of his claim within
twenty days following the second anniversary of his accident, or as
soon thereafter as reasonably possible. Under the facts assumed,
Mr. Bratton also would have been required to give written proof of
loss to the company at its office within ninety days after the date
of such loss, which at the latest would have been within two years
and ninety days of the accident, unless it was not reasonably
possible to give proof within such time, provided such proof is
furnished as soon as reasonably possible. The uniform provisions
of the plan further stipulate that no action at law or in equity
shall be brought after the expiration of three years after the time
written proof of loss is required to be furnished.
Accordingly, Mr. Bratton failed to file a written notice of
claim with the company within the time allotted by the plan,
because no such notice was filed within two years and twenty days
of the accident. He also failed to file a timely written proof of
loss with the company because no such proof of loss was filed
within two years and ninety days after the accident. Further, no
timely action at law or in equity was brought to recover on the
policy because none was filed prior to the expiration of three
years after the time written proof of loss was required to be
furnished. There is nothing in the administrative record to
14
indicate that it was not reasonably possible for Mr. Bratton to
file the written notice of claim and the written proof of loss
within the times prescribed. Mr. Bratton’s notice of claim and
proof of loss plainly were not timely filed under the express terms
of the NUFI policy.
An insured’s failure to submit timely written notice and proof
of his claim, does not necessarily invalidate his claim to
benefits. A state’s notice-prejudice rule, under which an insurer
must show that it was prejudiced by an insured’s failure to give
timely notice of a claim, may “regulate insurance” within the
meaning of ERISA’s saving clause and, thus, escape preemption by
ERISA. See UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358
(1999).9 Assuming without deciding that Mississippi has adopted
such a notice-prejudice rule, however, we agree with NUFI that the
record in the present case demonstrates that NUFI and AIG were
prejudiced as a matter of law by the extraordinary delay in the
9
In UNUM the Supreme Court examined California’s notice-
prejudice rule, which provides:
‘[A] defense based on an insured’s failure to give timely
notice [of a claim] requires the insurer to prove that it
suffered actual prejudice. Prejudice is not presumed
from delayed notice alone. The insurer must show actual
prejudice, not mere possibility of prejudice.’
UNUM, 526 U.S. at 366-67 (citing Shell Oil Co. v. Winterthur Swiss
Ins. Co., 12 Cal.App.4th 715, 760-61 (1st Dist. 1993)).
15
filing of the claim.10
In the present case, Mr. Bratton did not file a notice of
claim or a proof of loss during a period of over nineteen years
after his accident on August 21, 1976. By the time Mr. Bratton
filed his notice of claim on January 22, 1996, many events had
occurred that severely prejudiced NUFI’s right to properly
determine whether Mr. Bratton had been enrolled in the optional 24-
hour accident disability program on August 21, 1976 and to evaluate
his claim of total and permanent disability as defined by the
policy. Mr. Bratton, who was terminally ill when he filed his
notice of claim on January 22, 1996, died not long afterwards in
1996. Mr. Bratton’s former employer, ITT Thompson, was acquired by
McKechnie Vehicle Components in 1989. The former ITT Thompson
plant at which Mr. Bratton worked in Mississippi was closed in
1995. ITT Industries, the former parent or affiliate corporation
of ITT Thompson, submitted to the plan administrator all benefit
enrollment cards in Mr. Bratton’s personnel file, stating that
there was no enrollment form of any type of coverage for him with
NUFI. McKechnie Vehicle Components reported that the only
documents it had on file related to Mr. Bratton’s health care
10
See Lawler v. Gov’t Employees Ins. Co., 569 So.2d 1151
(Miss. 1990)(arguably adopting or reaffirming a notice-prejudice
rule). See also, Lawler, 569 So.2d at 1154, 1159-60 (Robertson,
J., dissenting)(citing, e.g., Rampy v. State Farm Mutual Automobile
Ins. Co., 278 So.2d 428, 434 (Miss. 1973)); id. at 1164 (Pittman,
J., dissenting); but see Bolivar County Bd. of Supervisors v. Forum
Ins. Co., 779 F.2d 1081, 1085 (5th Cir. 1986).
16
coverage continuation, a different type of coverage provided by an
insurer other than NUFI. The plan administrator’s supervisor of
claims determined that because Mr. Bratton filed his claim over
nineteen years after the accident, the insurer was neither afforded
the opportunity to complete a proper investigation of the claim nor
to complete a proper medical evaluation to determine if Mr. Bratton
was permanently and totally disabled as defined by the policy. The
administrator determined that it could not be inferred as a
reasonable probability from the unitemized $19.04 payroll deduction
for “group insurance” indicated on Mr. Bratton’s final pay check
stub that his regular payroll deductions included $3.00 or more per
month for optional accident disability coverage by NUFI. Mr.
Bratton was compensated for additional days after his actual
termination date, so that his final paycheck included more than the
usual amount of deductions and possibly other termination-related
adjustments. The plaintiff’s attempt to construct after-the-fact
a probable itemization of the final $19.04 deductions was not based
upon reliable cost data as to the various relevant coverages prior
to Mr. Bratton’s termination.
Under the circumstances of this case, we conclude that the
notice of claim was not timely filed and that the insurer was
prejudiced by the claimant’s delay of nearly two decades in
notifying it of the claim. Accordingly, there is warrant in the
administrative record and a valid basis in the insurance contract
17
to justify the plan administrator’s denial of the claim.
We also reject the plaintiff’s argument that the district
court’s judgment can be sustained as a recovery of disability
insurance benefits based on an action under § 502(a)(3) as a remedy
for a breach of a fiduciary’s duty. In Varity Corporation v. Howe,
516 U.S. 489 (1996), the Supreme Court held that § 502(a)(3)
authorized beneficiaries of an employee welfare plan to bring
lawsuits for individualized equitable relief against their
employer/plan administrator for breaches of fiduciary obligations
causing injuries by violations that § 502 does not elsewhere
adequately remedy. In the present case, however, the record is
devoid of evidence that would support a finding that ITT Thompson
or ITT Corp. was a fiduciary with respect to the NUFI group
accident insurance policy or that any ITT company had or exercised
any discretionary authority, control or responsibility in the
administration of the policy. Further, the record does not support
a determination that the ITT employee who advised Mr. Bratton as to
the requirements for dismemberment benefits had or was exercising
fiduciary authority or was guilty of knowingly and significantly
misleading Mr. Bratton as to benefits under the NUFI policy.
Finally, the plaintiff in this purported § 502(a)(3) action is
seeking only disability benefits allegedly due under the NUFI
policy for which § 502(a)(1)(B) affords an adequate remedy. See
Rhorer v. Raytheon Engineers and Constructors, Inc., 181 F.3d 634,
18
639 (5th Cir. 1999); Tolson v. Avondale Indus., Inc., 141 F.3d 604,
610 (5th Cir. 1998). Accordingly, the plaintiff cannot use a §
502(a)(3) Varity action in this case to preserve the district
court’s judgment in its favor.
For the reasons assigned, the judgment of the district court
is reversed, and judgment is rendered in favor of the defendants
against the plaintiff, Estate of Larry M. Bratton, represented
herein by its Executrix, JoAnn M. Bratton, dismissing the
plaintiff’s suit with prejudice.
19