dissenting.
It is without dispute that plaintiff/appellee chose not to exhaust the administrative remedies provided by law and the Plan which implemented the law but rather, long after the time had expired for seeking administrative review, filed a separate and independent action in the superior court. In so doing, not only did she bypass the orderly review which was available on a timely basis if she felt aggrieved by the termination of benefits caused by the Plan’s administrator, but she let the time expire when she could obtain a review as of right. Yet the court leaves open the door for an independent cause of action which cannot be a review of the administrative action because suit was filed before the gratuitous administrative examination of the records in her case took place. And so she is allowed to avoid the orderly processes provided by law.
I would take the view expressed by Judge Bowen in Jones v. TRW, Inc., Civil Action No. CV181-166, December 24,1981, U.S.D.C., Southern District of Georgia: “Although there is no express statutory exhaustion requirement for an ERISA claim, the Courts, in construing legislative history and intent, have discerned ‘that Congress intended a claimant to exhaust his interfund remedies before seeking federal court review.’ Taylor v. Bakery & Confectionary Union, 455 F.Supp. 816, 819 (E.D.N.C., 1978); see Amato v. Bernard, 618 F.2d 559, 566-68 (9th Cir., 1980); Carpenters Local, etc. v. Pratt-Farnsworth, 511 F.Supp. 509, 515 (E.D.La., 1981); Scheider v. U. S. Steel Corp., 486 F.Supp. 211 (W.D.Penn., 1980).
“The rationale underpinning the exhaustion doctrine was recently summarized by the Fifth Circuit: ‘The reasons for the exhaustion of administrative remedies doctrine include protecting administrative autonomy, deferring to agency expertise, facilitating judicial review through creation of a factual record by the agency, and conserving the time and energy of the courts since the judicial controversy may be mooted if the agency grants the relief sought.’ Baldwin Metals Co., Inc. v. Donovan, 642 F.2d 768, 771-72 (5th Cir., 1981).”
The review of the record which the employer’s counsel agreed to have done after suit was filed and which the administrative committee of the employer undertook, only to discover that exhaustion had not been accomplished, is immaterial except that it establishes that the employee had not first pursued her remedies within the law. That *729being the factual case, the employee cannot resurrect her claim by filing an independent cause of action in court, claiming that she is entitled to long term disability benefits which the employer refuses to pay. She is not claiming in the lawsuit that the administrative ruling was wrong, nor can she, because the gratuitous review did not even occur until after suit was filed. From whence does her cause of action arise? From Prudential’s determination to discontinue benefits effective May 10, 1982. The Plan implementing the federal law (see especially 29 USC § 1133) as construed by federal courts plainly required this to be appealed to the employer’s Plan administrative committee. Thereafter a suit could be filed.
Decided February 7, 1986. Gail C. Arneke, David E. Hudson, for appellant. Victor C. Hawk, for appellee.That was not done in this case. No review was sought but a suit was filed. I find no authority for the court to review the administrator’s decision, or to simply ignore it and make an independent determination that benefits are due. That is what would result if the case were allowed to proceed to trial.
Whether there was a “waiver” of the 60-day provision for application for review by the administrative committee of the decision of the Plan’s administrator is irrelevant because this suit does not challenge the decision of the administrative committee; that determination was not even in existence when this suit was filed.
ERISA provides the exclusive remedy in cases where employee disability insurance benefits are sought. 29 USC § 1144 (2); Champion Intl. Corp. v. Brown, 731 F2d 1406 (9th Cir. 1984); Russell v. Mass. Mut. Life Ins. Co., 722 F2d 482, 487 (9th Cir. 1983) [reversed on other grounds, Mass. Mut. Life Ins. Co. v. Russell, 473 U. S._(105 SC 3085, 87 LE2d 96) (1985)]; Dependahl v. Falstaff Brewing Corp., 653 F2d 1208, 1214 (8th Cir. 1981). Since plaintiff sought to bypass it, no doubt because she knew it was too late to pursue it, and to create a separate cause of action which the law does not recognize, I would reverse the denial of the motion for summary judgment.
I am authorized to state that Presiding Judge Birdsong joins in this dissent.