Burton v. Colorado Access

1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
5
6 ADVANCE SHEET HEADNOTE
7 February 12, 2018
8
9 2018 CO 11
0
1 No. 15SC801, Burton v. Colorado Access & No. 16SC163, Olivar v. Public Service
2 Employee Credit Union Long Term Disability Plan—Service of Process—Actions to
3 Recover Benefits—Void Judgments—Parties Liable.
4
5 The Employee Retirement Income Security Act (“ERISA”) allows plaintiffs to

6 serve the United States Department of Labor Secretary under 29 U.S.C. § 1132(d)(1)

7 (2016), when an employee-benefit plan has not designated in the summary plan

8 description an “individual” as agent for service of process. In these cases, the supreme

9 court holds that “individual” in § 1132(d)(1) includes a corporation. Therefore, service

0 of process on the Labor Secretary is proper only when a plan fails to designate either a

1 plan administrator or some other person, including a corporation, as agent for service of

2 process. Because the plans in these cases designated corporations as agents for service

3 of process, the petitioners’ service on only the Labor Secretary was insufficient. The

4 supreme court further holds that judgments void for lack of service may be set aside at

5 any time. Finally, the supreme court holds that the insurer, not the plan, is the only

6 proper defendant in an ERISA claim for benefits due when the plan’s terms provide

7 that only the insurer is obligated to pay and to determine eligibility for benefits.

8 Because the insurers alone were obligated to pay and to determine eligibility for
1 benefits in these cases, they (not the plans) are the proper party defendants. Therefore,

2 the supreme court affirms the judgment of the court of appeals in both cases.
1 The Supreme Court of the State of Colorado
2 2 East 14th Avenue • Denver, Colorado 80203

3 2018 CO 11

4 Supreme Court Case No. 15SC801
5 Certiorari to the Colorado Court of Appeals
6 Court of Appeals Case No. 14CA728

7 Petitioner:
8 Caroline Burton,
9 v.
0 Respondent:
1 Colorado Access, a/k/a Colorado Access Long Term Disability Plan.

2 Judgment Affirmed
3 en banc
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0 Supreme Court Case No. 16SC163
1 Certiorari to the Colorado Court of Appeals
2 Court of Appeals Case No. 14CA1734

3 Petitioner:
4 Brenda Olivar,
5 v.
6 Respondent:
7 Public Service Employee Credit Union Long Term Disability Plan.

8 Judgment Affirmed
9 en banc
0 February 12, 2018

1 Attorneys for Petitioners:
2 The Murphy Law Firm
3 Brian A. Murphy
4 Adam B. Kehrli
5 Wheat Ridge, Colorado
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2 Attorneys for Respondents:
3 Holland & Hart LLP
4 Michael S. Beaver
5 Greenwood Village, Colorado
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4 JUSTICE HOOD delivered the Opinion of the Court.

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¶1 Caroline Burton and Brenda Olivar submitted claims for long-term disability

benefits to insurance companies under employee-benefits plans set up by their

employers (“the Plans”). Both Burton’s and Olivar’s employers created the Plans by

purchasing long-term disability policies from insurance companies. The insurance

companies denied Burton’s and Olivar’s claims. Burton and Olivar sued the Plans

under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.

§ 1132(a)(1)(B) (2016), for benefits due to them under the insurance policies. But neither

served the Plans. Rather, they each served complaints on the United States Department

of Labor Secretary, relying on an ERISA provision allowing such service when a plan

hasn’t designated “an individual” as an agent for service of process. Id. § 1132(d)(1). In

both cases, the Labor Secretary never forwarded the complaint to the Plans’ designated

agents for service of process, the Plans failed to answer, and Burton and Olivar obtained

default judgments in their favor.

¶2 Eventually, the Plans moved to set aside the default judgments for improper

service, which the trial courts granted in both cases. Later, the Plans moved for

summary judgment, arguing the insurers, which were obligated to make all eligibility

determinations and payments under the Plans’ terms, were the only proper party

defendants. The trial courts agreed, granting the Plans summary judgment. A division

of the court of appeals affirmed.

¶3 In this opinion, we consider whether ERISA § 1132(d)(1)’s use of “individual”

provides that service on the Labor Secretary is sufficient when an employee-benefit plan

designates a corporation (instead of a natural person) as its administrator and agent for

3
service of process. We think not. We hold “individual” in this context includes a

corporation and service on the Labor Secretary is proper only when a plan fails to

designate either a plan administrator or some other person as agent for service of

process. We further hold that judgments void for lack of service may be set aside at any

time. Finally, we address which party is the proper defendant in an ERISA claim for

benefits due. We hold the insurer, not the Plan, is the only proper defendant in an

ERISA claim for benefits due when the Plan’s terms provide that only the insurer is

obligated to pay and to determine eligibility for benefits.

¶4 Accordingly, we affirm.

I. Facts and Procedural History

¶5 The Burton and Olivar cases concern ERISA claims for benefits filed against their

employee-benefit plans under ERISA’s civil-enforcement provision, 29 U.S.C.

§ 1132(a)(1)(B). And though the facts of these cases are quite similar,1 for clarity we

discuss them separately here.

A. Facts in Burton v. Colorado Access

¶6 Caroline Burton’s former employer, Colorado Access, offered an

ERISA-governed plan that it created by purchasing a long-term disability insurance

policy issued and administered by Unum Life Insurance Company of America

(“Unum”). The policy was the Plan’s governing instrument, and the summary plan

1 We note that both petitioners retained the same counsel to represent them in their
respective lawsuits.

4
description designated Colorado Access as the plan administrator and agent for service

of process.

¶7 Burton collected disability benefits under the plan for almost two years before

Unum terminated her benefits. After exhausting administrative remedies for Unum’s

benefits-denial decision, Burton filed a complaint in May 2007 against the Colorado

Access Plan (“CA Plan”) for benefits due under the long-term disability policy.

29 U.S.C. § 1132(a)(1)(B) (allowing beneficiaries to sue for benefits due under plans

governed by ERISA). But she didn’t serve Colorado Access the complaint. Rather, she

served the complaint only on the United States Department of Labor Secretary (“Labor

Secretary”), reasoning such service was proper under § 1132(d)(1).2

¶8 The Labor Secretary didn’t forward the complaint to Colorado Access, so the CA

Plan failed to file an answer. Thus, Burton sought and obtained a default judgment in

May 2008 against the CA Plan for back benefits and interest, a monthly payment until

Burton turned 65, and attorney fees.

¶9 Over four years after the trial court entered the default judgment, the CA Plan

filed a motion to set aside and vacate the judgment under C.R.C.P. 60(b)(3). Because

Burton failed to serve Colorado Access the complaint, it argued the trial court lacked

2Section 1132(d)(1), the provision on which both petitioners relied in serving the Labor
Secretary, provides in relevant part:
In a case where a plan has not designated in the summary plan
description of the plan an individual as agent for the service of legal
process, service upon the [Labor] Secretary shall constitute such service.
The [Labor] Secretary, not later than 15 days after receipt of service under
the preceding sentence, shall notify the administrator or any trustee of the
plan of receipt of such service.

5
personal jurisdiction over the CA Plan when entering judgment, which rendered the

default judgment void. The trial court agreed and vacated the judgment.

¶10 The CA Plan then moved for summary judgment, reasoning that because Unum

alone determined eligibility and was obligated to pay benefits under the plan’s terms,

only Unum could be held liable under § 1132(a)(1)(B). To support its motion, the CA

Plan attached the Unum insurance policy and an affidavit from Colorado Access’s Vice

President of Administrative Services and Corporate Compliance Officer. Both

documents confirmed the following: the CA Plan’s only governing document was the

insurance policy; any benefits approved were paid only by Unum; and the CA Plan

played no role in determining or paying benefits.

¶11 The trial court granted the CA Plan summary judgment, finding it wasn’t liable

for any benefits Unum decided not to pay because the plan document didn’t require the

CA Plan to pay benefits or to determine eligibility for benefits. Burton appealed,

arguing the trial court erred as follows: (1) that it improperly set aside the default

judgment because service on the Labor Secretary was proper under § 1132(d)(1); and

(2) that it erred in granting summary judgment because the CA Plan was liable to pay

Burton benefits due under § 1132(a)(1)(B).

¶12 A division of the court of appeals affirmed. In a published, unanimous opinion,

it concluded the following: (1) the trial court correctly set aside the default judgment,

because service on the Labor Secretary under § 1132(d)(1) is proper only where the

summary plan description fails to designate either a plan administrator or some other

person as an agent for service of process; and (2) the trial court correctly granted the CA

6
Plan summary judgment because it was not a proper defendant to Burton’s ERISA

benefits claim.

B. Facts in Olivar v. Public Service Employee Credit Union

¶13 Brenda Olivar’s former employer, Public Service Employee Credit Union

(“PSCU”), offered an ERISA-governed plan that it created by purchasing a long-term

disability insurance policy issued and administered by Standard Insurance Company

(“Standard”). The policy was the Plan’s governing instrument. The summary plan

description under the policy designated PSCU as the plan administrator and listed the

agent for service of process as “Plan Administrator.” The summary plan description

also required additional notice of legal process involving benefits claims be sent to

Standard.

¶14 After a car accident and a separate incident in which she fell down some stairs,

Olivar submitted a claim to Standard for disability insurance benefits, which it denied.

Olivar appealed, exhausting all administrative remedies for benefits. After losing, she

sued the Public Service Employee Credit Union Plan (“PSCU Plan”) for benefits due

under ERISA § 1132(a)(1)(B). Like Burton, Olivar didn’t serve PSCU the complaint—

instead, she served only the Labor Secretary, also relying on § 1132(d)(1). The Labor

Secretary didn’t forward the complaint, so the PSCU Plan never answered and the trial

court eventually entered a default judgment against it. In 2011, the trial court ordered

PSCU to pay the default judgment amount as garnishee, so PSCU paid Olivar back

benefits and began making monthly payments to her.

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¶15 About two years later (and over six years after the trial court entered the default

judgment), the PSCU Plan filed a motion to set aside and vacate the default judgment

against it as void under C.R.C.P. 60(b)(3) due to improper service of process. The trial

court agreed and set aside the default judgment. Olivar then submitted a motion to

reconsider setting aside the default judgment, which the trial court also rejected.

¶16 The PSCU Plan moved for summary judgment, raising essentially the same

arguments as the CA Plan in Burton’s case. The PSCU Plan also submitted the Standard

insurance policy and an affidavit from PSCU’s Senior Vice President and Chief

Operating Officer. Both documents confirmed the following: the PSCU Plan’s only

governing document was the insurance policy; any benefits approved were paid only

by Standard; and the PSCU Plan played no role in determining or paying benefits.

¶17 The trial court granted the PSCU Plan summary judgment, and Olivar appealed,

raising the same issues Burton raised in her appeal. Relying largely on the division’s

analysis in Burton v. Colorado Access, 2015 COA 111, ¶¶ 25–35, __ P.3d __, a different

division of the court of appeals affirmed the trial court in Olivar’s case.

¶18 Burton and Olivar petitioned this court for writs of certiorari, and we granted

their petitions.3

3 We granted certiorari to review the following issues in both cases:
1. Whether service upon the Secretary of the Department of Labor is
sufficient under 29 U.S.C. § 1132(d)(1) when an employee benefit plan
designates a corporation as its administrator and agent for service of
process.

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 II. Standard of Review

¶19 This case presents three types of issues—statutory interpretation, a trial court’s

decision to grant relief under C.R.C.P. 60(b)(3), and a trial court’s decision granting

summary judgment—all of which we review de novo. OXY USA Inc. v. Mesa Cty. Bd.

of Comm’rs, 2017 CO 104, ¶ 12, 405 P.3d 1142, 1144 (statutory interpretation); First Nat’l

Bank of Telluride v. Fleisher, 2 P.3d 706, 714 (Colo. 2000) (relief under C.R.C.P. 60(b)(3));

Thompson v. Md. Cas. Co., 84 P.3d 496, 501 (Colo. 2004) (summary judgment).

III. Analysis

¶20 First, we analyze whether service on the Labor Secretary alone is sufficient under

§ 1132(d)(1) when an employee-benefit plan names a corporation—instead of a natural

person—as its administrator and agent for service of process. Because we conclude it is

not, we next decide whether the trial courts in these cases erred in setting aside and

vacating the default judgments as void under C.R.C.P. 60(b)(3). We conclude they did

not. Finally, we explore whether the trial courts properly granted the CA Plan and

PSCU Plan summary judgment. Because we conclude that the insurers, not the Plans,

are the proper defendants for benefits due under the terms of the Plans, we conclude

the trial courts properly granted summary judgment.

2. Whether the district court erred in setting aside the default judgment
as void under C.R.C.P. 60(b)(3) because the petitioner served the
Complaint only on the Secretary of Labor pursuant to the terms of
29 U.S.C. § 1132(d).
3. Whether it is proper to grant and affirm summary judgment to the
respondent under the rationale the respondent is not a proper
defendant because it is an insurance-funded ERISA plan, as opposed to
a self-funded ERISA plan.

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 A. Service on the Labor Secretary

¶21 The parties dispute whether service of process on the Labor Secretary is proper

under § 1132(d)(1) when a plan lists a corporation (instead of a natural person) as its

administrator and agent for service of process.

¶22 To answer this question, we must interpret ERISA’s provisions. Thus, “we turn

to the well-established rules of federal statutory interpretation.” Copeland v. MBNA

Am. Bank, N.A., 907 P.2d 87, 90 (Colo. 1995).

¶23 The “first step in interpreting a statute is to determine whether the language at

issue has a plain and unambiguous meaning with regard to the particular dispute in the

case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). We determine whether

statutory language has a plain and unambiguous meaning “by reference to the

language itself, the specific context in which that language is used, and the broader

context of the statute as a whole.” Id. at 341. In looking at the language itself, we give

the words used their ordinary meaning. Roberts v. Sea-Land Servs., Inc., 566 U.S. 93,

100 (2012). And it’s “a cardinal principle of statutory construction that a statute ought,

upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or

word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31

(2001) (quotation and citation omitted). Similarly, we avoid interpreting a statute in a

way that creates absurd results “if alternative interpretations consistent with the

legislative purpose are available.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575

(1982).

¶24 ERISA § 1132(d)(1) provides in relevant part:

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 Service of . . . legal process of a court upon a trustee or an administrator of
an employee benefit plan in his capacity as such shall constitute service
upon the employee benefit plan. In a case where a plan has not
designated in the summary plan description of the plan an individual as
agent for the service of legal process, service upon the [Labor] Secretary
shall constitute such service. The [Labor] Secretary, not later than 15 days
after receipt of service under the preceding sentence, shall notify the
administrator or any trustee of the plan of receipt of such service.

(Emphases added.) Further, ERISA defines “administrator,” in relevant part, as “the

person specifically so designated by the terms of the instrument under which the plan is

operated.” 29 U.S.C. § 1002(16)(A)(i) (2016) (emphasis added). And “person” includes,

among other things, a “corporation.” Id. § 1002(9) (2016). ERISA also provides a plan

may designate “the name and address of the person designated as agent for the service

of legal process, if such person is not the administrator.” 29 U.S.C. § 1022(b) (2016)

(emphases added) (listing requirements for a summary plan description). But ERISA

doesn’t define “individual.”

¶25 Here, there’s no dispute that the summary plan descriptions named Colorado

Access and PSCU as the plan administrators and agents for service of process. But

petitioners contend that service of process on the Labor Secretary was proper because

the Plans listed corporations, not individual human beings, as agents for service of

process in the summary plan descriptions. The Plans disagree. Thus, our answer

hinges on what “individual” means in § 1132(d)(1).

¶26 Seizing on the above-listed provisions, with statutory construction canons and

case law interpreting “individual” in other statutory contexts to aid them, the parties

make compelling arguments for construing “individual” to favor each side. The Plans’

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argument connects the dots: Service of process on a plan administrator constitutes

service on the Plan and a plan administrator may be a corporation, or a plan may

designate some person other than the plan administrator as an agent for service of

process, and this too can be a corporation. Either way, ERISA plainly allows a

corporation to serve as agent for service of process. It follows then, the Plans contend,

that “individual” is not limited to natural persons, but rather “individual” includes a

corporation when looking at § 1132(d)(1)’s language in the context of ERISA as a whole.

Persuaded by this logic, a division of the court of appeals concluded that service on the

Labor Secretary is merely a substituted service provision—that is to say, such service is

proper only where the summary plan description fails to designate the plan

administrator or some other person, including a corporation, as agent for service of

process.

¶27 Yet, petitioners make strong textual arguments for why “individual” in

§ 1132(d)(1) refers only to a natural person. They argue when ERISA uses “individual”

as a noun in many of its other provisions, it always refers to a natural person. For

example, petitioners point to this excerpt from the “Criminal penalties” section:

Any person who willfully violates any provision of part 1 of this
subtitle . . . shall upon conviction be fined not more than $100,000 or
imprisoned not more than 10 years, or both; except that in the case of such
violation by a person not an individual, the fine imposed upon such
person shall be a fine not exceeding $500,000.

29 U.S.C. § 1131(a) (2016) (emphases added). Petitioners reason Congress could have

used the word “person” or just left out “an individual” in § 1132(d)(1) if its intent had

been the conclusion reached by the court of appeals. And so, they claim construing

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“individual” to include a corporation here writes “individual” out of the statute

entirely.

¶28 We disagree. We are persuaded by the division’s opinion on this issue for three

reasons. First, reading “individual” to mean only a natural person here yields an

absurd result: Why would Congress expressly allow a plan to designate a corporation

as agent for service of process (whether as the plan administrator or not) and then,

simultaneously, allow the plaintiff to ignore the designated agent for service of process

because it’s a corporation? We avoid this absurd result by construing “individual” in

§ 1132(d)(1) to include a corporation.

¶29 Second, as the court of appeals pointed out, the ordinary meaning of

“individual” isn’t limited to natural persons. See Individual, Webster’s New College

Dictionary (2005) (defining as “a single thing, being, or organism”) (emphasis added);

Individual, Black’s Law Dictionary (10th ed. 2014) (“Of, relating to, or involving a single

person or thing . . . .”) (emphasis added).

¶30 Finally, our interpretation doesn’t read “individual” out of the statute. Rather, it

better achieves what Congress intended § 1132(d)(1) to be—a substituted service

provision. The Supreme Court has observed “individual” doesn’t “invariably mean[]

‘natural person’ when used in a statute,” but there must be “some indication Congress

intended” to give the word “a broader or different meaning” in a given statute.

Mohamad v. Palestinian Auth., 566 U.S. 449, 455 (2012). Tellingly, the Court then

remarked that Congress indicates its intent for “individual” to have a broader or

different meaning than natural person in situations exactly like the one here: where

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reading “individual” to mean natural person would lead to an absurd result. Id. (citing

Clinton v. City of New York, 524 U.S. 417, 429 (1998) (finding Congress intended

“individual” to be synonymous with “person” in the Line Item Veto Act, because a

contrary reading would produce an absurd result)). And, though petitioners correctly

observe that there are other provisions in ERISA where “individual” clearly refers to

only a natural person, such occurrences don’t undermine our broader reading of the

word in § 1132(d)(1). Indeed, the Supreme Court has “several times affirmed that

identical language may convey varying content when used in different statutes,

sometimes even in different provisions of the same statute.” Yates v. United States,

__ U.S. __, 135 S. Ct. 1074, 1082 (2015) (emphasis added).

¶31 Thus, we agree with the court of appeals and hold the following: (1) in the

context of ERISA as a whole, “individual” in § 1132(d)(1) includes a corporation; and (2)

the provision on which petitioners rely is a substituted service provision, so service on

the Labor Secretary is proper only where the summary plan description fails to

designate either the plan administrator or some other person, including a corporation,

as agent for service of process.

¶32 But did the courts below err in setting aside the judgments as void? We turn to

that question next.

B. Void Judgments Under C.R.C.P. 60(b)(3)

¶33 Having determined above that petitioners’ service only on the Labor Secretary

was insufficient, we must now decide whether the courts below nonetheless erred in

vacating the default judgments against the Plans.

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¶34 C.R.C.P. 60(b)(3) provides a court may set aside a judgment that is void. Yet, as

petitioners point out, the rule then provides that such a “motion shall be made within a

reasonable time.” C.R.C.P. 60(b) (emphasis added). Petitioners contend the Plans’

motions to set aside the default judgments were not made within a reasonable time,

emphasizing that the CA Plan’s motion came more than four years after the trial court

entered the judgment and the PSCU Plan didn’t move to set aside the default judgment

against it until more than six years after it was entered and a full two years after PSCU

itself paid back benefits and began making monthly payments to Olivar.

¶35 Again, we disagree. Petitioners’ arguments overlook a fundamental

principle: “[A] default judgment entered by a court without personal jurisdiction over

the defendant, e.g., due to an invalid service of process, is a nullity and without effect.”

Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310, 315 (Colo. 2010). It

follows, then, that because a void judgment is “without effect,” it may be attacked at

any time. See Davidson Chevrolet, Inc. v. City & Cty. of Denver, 330 P.2d 1116, 1119

(Colo. 1958) (“Being naught, [a void judgment] may be attacked directly or collaterally

at any time.”); In re Marriage of Stroud, 631 P.2d 168, 170 n.5 (Colo. 1981) (“[W]here the

motion alleges that the judgment attacked is void, C.R.C.P. 60(b)(3), the trial court has

no discretion. The judgment either is void or it isn’t and relief must be afforded

accordingly.”).

¶36 Because petitioners failed to properly serve the Plans, the trial courts that entered

the default judgments in these cases had no personal jurisdiction over them. See

Weaver Constr. Co. v. Dist. Court, 545 P.2d 1042, 1045 (Colo. 1976). And, as a result,

15
petitioners’ reasonable-time arguments necessarily fail. Moreover, we think it’s clear

that C.R.C.P. 60(b)’s reasonable-time language doesn’t apply here where the underlying

rationale for vacating is “on the grounds that such lack of notice constitutes a due

process violation.” First Nat’l Bank of Telluride, 2 P.3d at 712 (emphasis added).

¶37 Thus, because we hold judgments void for lack of service may be set aside at any

time, we conclude the trial courts didn’t err in vacating the default judgments in these

cases.

¶38 Still, did the trial courts err in granting the Plans summary judgment? We

explore that issue below.

C. Proper Party Defendants in Insurance-Funded ERISA Plans

¶39 As the division of our court of appeals and other courts confronting this issue

have aptly noted, ERISA expressly provides who may bring a claim for benefits due,

but not whom is the proper party for them to sue. See § 1132(a)(1)(B). So, is the plan or

the insurer the proper party defendant where only the insurer determines eligibility

and is obligated to pay benefits? Petitioners argue the plan is always a proper

defendant. The Plans contend the insurers are the only proper defendants here, because

the plans were insurance-funded and the insurers alone determined eligibility for

benefits and had the obligation to pay them.

¶40 Because of this statutory gap, courts are split on the issue. Some courts have held

the plan is always a proper party defendant in actions under § 1132(a)(1)(B). See, e.g.,

Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 509–10 (2d Cir.

2002). These courts reach this conclusion from the plain language in §§ 1132(a)(1)(B)

16
and 1132(d)(1), (2). See id. at 509. Section 1132(a)(1)(B) provides: “A civil action may be

brought . . . by a participant or beneficiary . . . to recover benefits due to him under the

terms of his plan . . . .” And §§ 1132(d)(1) and (2) note an “employee benefit plan may

sue or be sued under this subchapter as an entity,” and any “money judgment . . .

against an employee benefit plan shall be enforceable only against the plan as an

entity.” Thus, courts on this side of the split reason that these provisions “make plain

that a plan can be held liable in its own name for a money judgment,” and that arguing

the plan isn’t liable merely because it contracts with an insurer to pay beneficiaries “is

wholly unsupported by the language of the statute.” Chapman, 288 F.3d at 509.

¶41 Other courts take a more functional approach in resolving this issue, holding the

proper defendant is the party that exercises control over the administration of the plan.

E.g., Garren v. John Hancock Mut. Life Ins. Co., 114 F.3d 186, 187 (11th Cir. 1997) (per

curiam). Courts following this functional approach reason that the statutory provisions

on which opposing courts rely merely establish “that an employee benefits plan is an

ERISA entity and is subject to suit in some instances, [but] that proposition does not

mean that a plan is a proper party in every ERISA case.” Milton v. Life Ins. Co. of, N.

Am., CV-12-BE-864-E, 2012 WL 2357800, at *2 (N.D. Ala. June 20, 2012) (dismissing plan

named as defendant where insurer was sole party handling and making claims

decisions).

¶42 Lately, there has been a trend of courts broadening the scope of who may be a

proper defendant under § 1132(a)(1)(B). For example, the Ninth Circuit, which had

previously held that only the plan (and in some circumstances the plan administrator) is

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a proper defendant, changed course in Cyr v. Reliance Standard Life Ins. Co.,

642 F.3d 1202 (9th Cir. 2011) (en banc). There, an employee seeking increased long-term

disability benefits sued the insurer that denied her claim, though it wasn’t designated

the plan administrator. Id. at 1204. In expanding the scope of potential defendants

under § 1132(a)(1)(B) to include insurers, the Cyr court remarked that a “plan

administrator under ERISA has certain defined responsibilities involving reporting,

disclosure, filing, and notice,” but “the plan administrator can be an entity that has no

authority to resolve benefit claims or any responsibility to pay them.” Id. at 1207.

Because the plan administrator “had nothing to do with denying [the employee’s] claim

for increased benefits” and the insurer denied the claim and “was responsible for

paying legitimate benefits claims,” the Cyr court concluded the insurer was “a logical

defendant.” Id.

¶43 The Seventh Circuit too more recently deviated from the Chapman approach,

when it held:

Although a claim for benefits ordinarily should be brought against the
plan (because the plan normally owes the benefits), where the plaintiff
alleges that she is a participant or beneficiary under an insurance-based
ERISA plan and the insurance company decides all eligibility questions
and owes the benefits, the insurer is a proper defendant in a suit for
benefits due under § 1132(a)(1)(B).

Larson v. United Healthcare Ins. Co., 723 F.3d 905, 915–16 (7th Cir. 2013). In reaching

this conclusion, the court observed “a cause of action for ‘benefits due’ must be brought

against the party having the obligation to pay. In other words, the obligor is the proper

defendant on an ERISA claim to recover plan benefits.” Id. at 913. Thus, it concluded

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because the insurers decided eligibility questions and had the obligation to pay, the

insurance companies were the obligors and could be sued for benefits due under

ERISA. Id.

¶44 At least one court has read Larson to mean liability isn’t limited to just the

obligor insurance company that pays and decides claims. See OSF Healthcare Sys.

v. Insperity Grp. Health Plan, 82 F. Supp. 3d 860, 864 (C.D. Ill. 2015). Rather, the OSF

court concluded Larson merely allows insurers to be sued, and plans are still proper

defendants under common law contract principles even if an insurance company

controls payment and determines eligibility for plan benefits. Id.

¶45 But regardless of Larson’s actual reach, we still think the trial courts properly

granted the Plans summary judgment. In the end, holding that the plan is always a

proper defendant overstates the whole point of petitioners’ claims: Section 1132(a)(1)(B)

allows a beneficiary to sue “to recover benefits due to him under the terms of his plan.”

(Emphasis added.) In this case, we’re persuaded Unum and Standard—not the Plans—

are the only proper defendants because the following is undisputed:

• The Plans were funded as insurance policies and had no assets;

• The only governing instruments were the insurance policies;

• Only Unum and Standard determined benefits eligibility;

• Only Unum and Standard were obligated to pay benefits;

• And the Plans played no role in handling petitioners’ claims for benefits.

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Indeed, to use Larson’s terminology, we think these facts make Unum and Standard the

obligors and, thus, the proper defendants on petitioners’ ERISA claims to recover

benefits due under the terms of their plans. See § 1132(a)(1)(B).

¶46 Petitioners’ only compelling argument4 on this issue is that cases on Chapman’s

side of the split got it right and, thus, this court should adopt that approach here.

However, here, like in Cyr, it’s clear that the Plans had “no authority to resolve benefit

claims or any responsibility to pay them,” unlike Unum and Standard, which are the

“logical” defendants. 642 F.3d at 1207. Indeed, the Plans argue (and petitioners don’t

adequately rebut) that even if this court agreed with petitioners and reversed summary

judgment, the Plans have no assets to pay any potential judgments against them.

¶47 That’s not to say an insurance-funded plan may never be sued. Rather, we think

that just because ERISA allows plans to be sued, § 1132(d)(1), doesn’t mean they can be

sued when they have no legal obligation to provide benefits under the plan’s terms. See

Larson, 723 F.3d at 913. Thus, we conclude the insurers, not the plans, are the only

proper defendants in ERISA claims for benefits due, when the plans’ terms provide that

only the insurers are obligated to pay and to determine eligibility for benefits.

4 We disagree with petitioners that Geddes v. United Staffing Alliance Employee
Medical Plan, 469 F.3d 919 (10th Cir. 2006), stands for the proposition that an insurer is
not a proper defendant. Geddes involved a third-party administrator, id. at 922, not an
insurer that solely determined eligibility for benefits and was obligated to pay them
under the plan, and is therefore factually inapposite.

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 IV. Conclusion

¶48 We hold “individual” in ERISA § 1132(d)(1)’s context includes a corporation and

that service on the Labor Secretary is proper only when a plan fails to designate either a

plan administrator or some other person as agent for service of process. Further, we

hold that judgments void for lack of service may be set aside at any time. Thus, we

conclude that service on the Labor Secretary was insufficient here and the trial courts

properly set aside and vacated the default judgments against the Plans as void. We also

hold the insurer, not the plan, is the only proper defendant in an ERISA claim for

benefits due when the plan’s terms provide that only the insurer is obligated to pay and

to determine eligibility for benefits. Accordingly, we conclude the trial courts properly

granted the Plans summary judgment because the insurers in these cases are the proper

defendants.

¶49 Therefore, we affirm the court of appeals in both cases.

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