concurring in part, dissenting in part.
Susan and James Killian were understandably distraught when they learned in early April 2006 that Susan had lung cancer, that it had spread to her brain, and that the brain tumors were inoperable. It is also only natural that their thoughts were focused on Susan’s health and finding a doctor able to operate and remove the tumors, and not on the terms of Susan’s health insurance plan. And so the Killians did not inquire in advance whether her doctors or Rush University Medical Center were within her health care network; because it turned out that they were not, Susan incurred liability of approximately $80,000 in medical expenses. James believed Concert Health Plan Insurance Company (“Concert”) and Royal Management, her employer and the plan administrator, should be liable for those expenses because when he called to inform Concert that Susan was being admitted for brain *679surgery, the Concert representatives did not inform him that the medical providers were out-of-network. Accordingly, on August 22, 2007, on behalf of Susan’s estate, James filed suit against Concert and Royal Management under ERISA for denial of benefits, breach of fiduciary duty, and for statutory damages. In addition to statutory damages, James sought equitable relief in the form of payment for (or a direction to pay), the outstanding medical bills owed the Rush providers.
Over the course of the last six years, the parties, the district court, and this court have expended significant resources exploring the scope of ERISA’s fiduciary obligations and the network status of the Rush providers. During that time, the administration of Susan’s estate was completed and the estate was closed and James inherited Susan’s rights in this litigation. The court was belatedly notified of this development and the parties did not consider its import, leaving the court to direct the parties to file supplemental briefing on the question of whether the closing of Susan’s estate mooted this appeal. In response, James reopened the estate but “solely for the purpose of probating the ERISA clam and prosecuting the claim in the District Court and 7th Circuit Court of Appeals.” R.58-2. The issue, though, was never whether James could continue to prosecute Susan’s ERISA claims which he inherited in his individual capacity. He clearly could — if the relief sought would make a difference to the legal interests of the parties. But it won’t, at least for the denial of benefits and breach of fiduciary duty claims. Both those claims sought as relief payment of the outstanding medical bills. However, neither Susan nor her estate ever paid those bills. Now that her estate is closed for all purposes except prosecution of this case and the statutory time period for recovering from a decedent (and James for that matter) has passed, there is no longer any liability to the Rush providers. Thus, while an order to pay those bills would benefit third-party non-litigants who no longer have a claim against the estate, i.e., the Rush providers, such relief would not make a difference to the legal interests of Susan’s estate, since there is no longer any liability for those medical bills. What we have then is an advisory opinion on the merits of the denial of benefits and breach of fiduciary duty claims because the asserted harm no longer exists. If those claims were not moot, I would agree that remand would be appropriate on the denial of benefits claim, but that, for several reasons, Susan’s breach of fiduciary duty claim cannot succeed. The statutory damages claim, though, remains a live controversy because Susan’s entitlement to those damages now resides with James, her beneficiary, and remand on that claim is appropriate. Accordingly, I CONCUR IN PART AND DISSENT IN PART.
I. BACKGROUND
The en Banc court recounts the sad facts in this case. In brief, in February 2006, Susan Killian saw her primary care physician because she was suffering from persistent headaches and a severe cold. Her doctor ordered a CT scan, which revealed that Susan had lung cancer that had spread to her brain. She was admitted to Delnor Community Hospital for five days, but was told that her brain tumors were inoperable and she was discharged. Susan and her husband James decided that she should seek a second opinion and they turned to Dr. Bonomi. Dr. Bonomi had previously treated Susan’s daughter as well as Susan’s fiancé, both of whom unfortunately died of cancer. R. 115-3 at 28, 31.
*680After her release from Delnor, Susan scheduled an appointment with Dr. Bono-mi for April 7, 2006. Dr. Bonomi directed Susan to first meet with a neurosurgeon, Dr. Louis Barnes. Prior to Susan’s appointments with Dr. Bonomi and Dr. Barnes, James made no attempt to determine whether the doctors were in the PHCS Open Access Network, which was the network applicable to Susan’s health insurance plan with Concert. James testified that he did not know whether Susan had made any calls or had reviewed the website for a list of network providers1. R.115-3 at 30-31, 121.
On April 7, 2006, Susan met with Dr. Barnes and he told her that one of her tumors needed to be removed immediately or she would be dead within five days. Based on Dr. Barnes’ prognosis, Susan decided to have the tumor removed. While she was being admitted to Rush Hospital, James telephoned Concert. Although the en Banc court states that James “first called the ‘provider participation’ number listed on the front of Mrs. Killian’s insurance card,” Opinion at 655, as discussed in more detail below, the record does not support that conclusion; rather, the record shows that James placed two telephone calls to Concert’s customer service/utilization review number. See infra at 690-94. And when asked why he called Concert on April 7, James said twice in his deposition that he called Concert to tell them Susan “was going to be admitted to a hospital.” R.115-3 at 71-73.
Doctors removed the brain tumor on April 10 and Susan was released from the hospital on April 12, 2006. R.77-5 at 55-56. She received additional outpatient services from Dr. Bonomi and attempted chemotherapy, but could not tolerate it. In June 2006, Susan was admitted to Rush for nine days to be treated for pneumonia. She died two months later.
After Susan’s surgery and prior to her death, Susan began receiving bills from the various Rush providers for outstanding balances related to the brain surgery2. In total, the Rush providers continued to bill Susan for approximately $80,000 in medical expenses. Contrary to the court’s statement that Concert stated it would not cover services at Rush, Opinion at 656-57, Concert did not deny Susan coverage for the various services related to her brain surgery at Rush; rather, it paid those claims pursuant to the policy’s out-of-network formula. R.115-3 at 263, 270; R.41-18 at 1. In total, Concert paid approximately $17,500 in medical expenses related to Susan’s surgery at Rush. R. 41-11 at 1, 2, 7. Moreover, while the providers continued to bill Susan for approximately $80,-000-plus in medical expenses, the great disparity between the amount paid by Concert ($17,500) and the remaining amount owed by Susan (approximately $80,000) resulted not from an astonishingly low percentage covered by the insurance company for out-of-network expenses,3 but from the fact that the out-of-network providers charged a much higher rate for their services than Concert believed was *681reasonable, that is, the “maximum allowable fee.” Specifically, Concert paid out-of-network providers for services rendered based on the Medicare Resource-Based Relative Value Scale. R.77-3 at 22; R.41-18 at 1. And unlike in-network providers, out-of-network providers had not agreed to accept the insurance company’s payment as full payment for services. Rather, out-of-network providers could continue to bill a patient at whatever rate they deemed appropriate, which, in Susan’s case, resulted in her owing the Rush providers approximately $80,000.4
Susan could have avoided these high out-of-pocket expenses had she opted for better coverage through a different Concert health care plan offered by her employer, namely one which used the PHCS-PPO network. The Rush providers were in-network for the PHCS-PPO network. R.115-3 at 250. But the Concert plan which used the PHCS-PPO network of physicians was more expensive and would have cost Susan approximately 50% more in premiums. R.251 at 51; R.259-3 at 80. Obviously, when she selected the less expensive policy Susan did not know she would soon be diagnosed with late-stage cancer and that her preferred doctors would be out-of-network.
At the time Susan enrolled in the Concert Health Care Plan and selected coverage under the S035 Open Access option, which used the PHCS Open Access network of providers, she was informed of these reimbursement provisions. Specifically, Susan received an enrollment packet which included, among other things, a Certificate of Insurance, a reminder page, a “frequently asked questions” page, a document summarizing her employment benefits, and her health insurance card (a copy of which is appended to the en Banc court’s opinion). R.259-2-5. The Certificate of Insurance detailed Susan’s coverage and, relevant to this appeal, explained in straightforward terms the difference in coverage for in-network and out-of-network providers and that insureds were responsible for any charges above the maximum allowable fee, while stressing that “the choice of provider is Yours.” R.77-3 at 5, 11-12. It also explained that insureds could determine the network status of providers by calling Concert or by checking online. R.77-3 at 5. Additionally, it stressed the requirement that insureds notify Concert of any hospital admissions for “pre-certification” or “utilization” review, or incur a $1,000 penalty. R.77-3 at 11. And finally, it explained that pre-certification review was a determination of whether a medical service was medically necessary and that “[pjrecertifieation of medical necessity is subject to the limitations, exclusions, and provisions of this certificate_” R.77-3 at 23.
While the Certificate of Insurance was a comprehensive document, spanning fifty-one pages, the enrollment packet included much more simplified highlights for insureds, including a two-page “Employee Benefit Summary” of the Concert Health Plan. R.259-5 at 2, 3. This summary specified that the S035 Open Access network was the “PHCS Open Access” network. Id. It then summarized the reimbursement rates for various services, both in-network and out-of-network, and informed insureds that: “Non-Network services are subject to Maximum Allowable Fee limitations. The Patient will be responsible for any *682charges over these limits.” Id. Another one-page, large-font sheet captioned “REMINDER, PRE-CERTIFICATION IS NEEDED FOR THE FOLLOWING SERVICES,” provided a list of eleven services requiring precertification, including “hospital admission.” R.259-5 at 9. And a separate one-page handout provided a list of important telephone numbers and website addresses, including both the PHCS webpage and telephone number and the Concert webpage and telephone number. R.259-5 at 7. Finally, a one-page “Frequently Asked Questions” sheet explained that
Concert Health Plan has partnered with PHCS for your health plan. PHCS is the nation’s leading health care network. In order to locate a provider in a specific region of the county, (sic), simply go to the PHCS web site (WWW.PHCS. COM). You will also have an option to print out a “personalized directory” based on the areas for which you are looking for a provider.
R.259-5 at 8. Insureds were also directed “to confirm with the network that the provider is still participating at the location you have chosen” by calling PHCS at 800-242-6679. Id.
James, as administrator of Susan’s estate, eventually sued Concert, and later, in an amended complaint, added Susan’s former employer, Royal Management. The amended complaint alleged three ERISA claims: (1) denial of benefits, (2) breach of fiduciary duty, and (3) statutory damages. The district court granted summary judgment to the defendants on all three claims and James, as administrator of Susan’s estate, appealed.
During the pendency of the appeal, Susan’s estate was closed and James inherited Susan’s lawsuit. James was then substituted in as the plaintiff. R.48-2. This court directed the parties to file supplemental briefing on the question of whether the closing of Susan’s estate mooted this litigation. In response, James reopened Susan’s estate “solely for the purpose of probating the ERISA claim and prosecuting the claim in the District Court and 7th Circuit Court of Appeals.” R.58-2. He then requested that the court substitute the estate back into the case. R.64-1 at 2.
The en Banc court, sua sponte, deemed James’s motion to substitute himself in his capacity as administrator of the estate as a motion to add himself in that capacity, in order to allow James to continue to pursue this litigation both in his individual capacity and as administrator of Susan’s estate. Opinion 662 at n. 26; Opinion at 671. But whether James is now prosecuting this case in his individual capacity — having inherited the lawsuit — or in his capacity as administrator of Susan’s estate, is irrelevant because the underlying claims remain Susan’s breach of fiduciary duty, denial of benefits and statutory damages claims.
The court concludes that those ERISA claims are not moot, stating “there is no question that the parties have a current, live dispute with both immediate and potential future consequences.” Opinion at 661. The court suggests four theories for why there remains a live controversy. First, the court reasons that the estate may have already suffered a concrete and redressable injury by having overpaid some medical bills. Opinion at 660-61. But as discussed below, James never argued such a harm. Opinion at 685-86. Second, the court asserts that since Susan’s estate has been reopened, the Rush claims “might be pursued now against the estate.” Opinion at 663. This reasoning is wrong for two reasons: (1) Susan’s estate has not been reopened for purposes of allowing creditors to file additional claims against the estate, but solely for the purpose of prosecuting this ERISA action; *683and (2) as James stated in his Supplemental Reply Memorandum: “All claims against the estate are barred by the Illinois Probate Act’s two-year limitation period, 755 ILCS 5/18 — 12(b).... Thus, Rush University and Susan Killian’s other providers cannot collect anything from her estate.” R.64-1 at 1. The court’s third rationale for why this case is not moot, namely that James remains directly and personally liable on Susan’s medical bills, is equally misplaced. Opinion at 661. James’s purported liability is unrelated to his status as a beneficiary and thus Susan’s estate (or James, individually as her beneficiary), cannot pursue the denial of benefits and breach of fiduciary duty claims premised on James’s unrelated direct and personal liability. And in any event, James is no longer liable to the Rush providers because the five-year statute of limitations for bringing suit against James under the Illinois Family Expense Act, 750 ILCS 65/15, has long since run. The court’s fourth rationale, that “the possibility of meaningful declaratory relief supports an exercise of jurisdiction,” is also wrong because there is no declaratory relief that could affect the legal interests of the parties. Accordingly, as discussed below, Susan’s estate’s denial of benefits and breach of fiduciary duty claims are now moot. The statutory penalty claim, though, is different because that claim entitles Susan’s estate to monetary damages, which James, as her beneficiary, inherits and thus that claim is not moot.
On the merits, after concluding that Susan’s claims are not moot, the en Banc court adopts, in part, the panel decision in Killian v. Concert Health Plan (Killian I), 680 F.3d 749 (7th Cir.2012). In the panel decision in Killian I, the court affirmed the district court’s grant of summary judgment for Royal Plan and Concert on the denial of benefits claim, but required the parties to stipulate concerning whether the Rush providers were in the PHCS Open Access network. Id. at 756 n. 5. The panel also affirmed summary judgment on the breach of fiduciary duty claim, but reversed and remanded the statutory damages claim because the district court erred in calculating the penalty and failed to address one of James’s arguments. Id. at 762-64. The en Banc court “adoptfs] the panel’s reasoning and conclusion related to the denial of benefits and statutory penalties issues.” Opinion at 654. The en Banc court also agrees with the panel that Royal Plan and Concert were entitled to summary judgment on James’s claim that the defendants breached their fiduciary duty by failing to provide Susan with a summary plan description, because James could not show that the lack of a summary plan description caused any harm. Opinion at 659. However, the en Banc court holds that reversal on the breach of fiduciary duty claim is appropriate because a rational finder of fact could conclude that Concert had a fiduciary duty to inform James that the Rush providers were out-of-network during the April 7, 2006 telephone conversations; that it breached that duty; and that that breach resulted in harm to James. Opinion at 671.
If Susan’s breach of fiduciary duty claim was not moot, the defendants would nonetheless be entitled to summary judgment on the merits. A breach of fiduciary duty claim premised on the April 7, 2006, telephone calls fails, first because James waived any argument that the defendants breached their fiduciary duty by not informing him, when he called, that the providers were out-of-network. And the defendants did not waive this waiver. Second, even if this theory had not been waived, there was no breach of fiduciary duty because James did not put Concert on notice that he was inquiring on the *684providers’ network status as in-network or out-of-network providers. Accordingly, even if this claim is not moot, the district court’s decision granting the defendants summary judgment on the breach of fiduciary duty should be affirmed. The denial of benefits claim is likewise moot, but if it were not, at this stage remanding to allow the parties to submit a stipulation concerning the Rush providers’ network status seems most expedient. If they are unable to do so, the district court should resolve the dispute. Finally, I agree that remand on the statutory penalty claims is appropriate, as the panel decision held and as adopted by the en banc court.
II. DISCUSSION
A. Susan’s breach of fiduciary duty and denial of benefits claims are moot because the Killians never paid the Rush providers and there is no longer a legal obligation to pay those bills. Thus, there is no longer any legal harm to Susan’s estate.
Article III, § 2 of the Constitution grants federal courts the authority to adjudicate only “actual ongoing controversies.” St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 626 (7th Cir.2007) (quoting Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). “For a case to be justiciable, a live controversy must continue to exist at all stages of review, not simply on the date the action was initiated.” Brown v. Bartholomew Consol. School Corp., 442 F.3d 588, 596 (7th Cir.2006). Thus, “[i]t has been firmly established that an appeal should be dismissed as moot when, by virtue of an intervening event, a court of appeals cannot grant any effectual relief whatever in favor of the appellant.” A.B. ex rel. Kehoe v. Hous. Auth. of South Bend, 683 F.3d 844, 845 (7th Cir.2012) (internal quotation omitted). Moreover, “[although neither party has urged that this case is moot, resolution of the question is essential if federal courts are to function within their constitutional sphere of authority.” North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). Accordingly, “mootness, like standing, is always a threshold jurisdictional question that we must address even when it is not raised by the parties.” Wernsing v. Thompson, 423 F.3d 732, 745 (7th Cir.2005) (internal quotation omitted).
Under this framework, Susan’s denial of benefits and breach of fiduciary duty claims are moot. At the time that James, as administrator of Susan’s estate, filed suit, Susan’s estate allegedly owed approximately $80,000 in medical bills to the Rush providers. Killian I, 680 F.3d at 758. Since then, Susan’s estate had been closed. Actually, Susan’s estate had been closed in August 2011 — prior to both the oral argument and the release of the panel’s decision in Killian I — but the court was not informed of this development until September 2012, when James filed a motion to substitute himself as plaintiff. R.48-2. In that motion, James explained that the only asset of Susan’s estate was the underlying ERISA claim, that Susan’s estate had been closed, and that that asset had been transferred to him. Attached to that motion were the state court orders confirming these facts. Id. This court granted the motion and substituted James as the plaintiff.
Based on these developments, this court directed the parties to file supplemental briefing on the question of whether the closing of Susan’s estate mooted this litigation. Specifically, the court directed the parties to discuss “with particularity whether Mr. Killian retains any interest in obtaining relief and whether the relief sought by Mr. Killian will make a difference to his legal interests.” R.53. In re*685sponse, James reopened Susan’s estate “solely for the purpose of probating the ERISA claim and prosecuting the claim in the District Court and 7th Circuit Court of Appeals.” R.58-2. He then requested that this court substitute the estate back into the case. R.64-1 at 2. The court deemed this a request to add him in his capacity as administrator of Susan’s estate, leaving James to pursue this litigation in that capacity and in his individual capacity. Opinion 662 at n. 26; Opinion at 671.
The court asserts James’s reopening of the estate resolves the mootness question because the unpaid medical bills “might be pursued now against the estate.” Opinion at 663. According to the court: “In light of the reopening of the estate, the contention in Judge Manion’s dissent ... that there is no possibility of recovery of the medical bills from the estate, and therefore no apparent harm to the estate, is not demonstrably correct.” Opinion at 662. But the estate was reopened “solely for the purpose of probating the ERISA clam and prosecuting the claim in the District Court and 7th Circuit Court of Appeals.” R.58-2. Thus, the estate is not open for purposes of allowing third-party creditors, such as the Rush providers, to seek recovery from the estate for medical expenses.
Nor is there any possibility that the Rush providers could still reopen the estate and recover on the unpaid medical bills. As James stated in his Supplemental Reply Memorandum: “All claims against the estate are barred by the Illinois Probate Act’s two-year limitation period, 755 ILCS 5/18 — 12(b) ... Thus, Rush University and Susan Killian’s other providers cannot collect anything from her estate.” R.64-1 at 1. James is correct. Section 18-12(b) provides that “[u]nless sooner barred under subsection (a) of this Section, all claims which could have been barred under this Section are, in any event, barred 2 years after decedent’s death, whether or not letters of office are issued upon the estate of the decedent.” 755 ILCS 5/18-12(b). “The filing of a claim within the period specified by section 18-12 is mandatory.” In re Estate of Hoheiser, 97 Ill.App.3d 1077, 53 Ill.Dec. 612, 424 N.E.2d 25, 28 (1981). And the failure to file a claim within this statutory period is a bar to recovery, even if the executor had personal knowledge of the claim. Id. Further, “where a legal claim should have been, but was not, filed against an estate within the statutory period, relief will not be accorded by the application of equitable principles.” In re Estate of Ito, 50 Ill.App.3d 817, 8 Ill.Dec. 847, 365 N.E.2d 1309, 1311 (1977). In short, “[n]o exception to the filing period may be engrafted by judicial decision.” Id. In fact, “[a] probate court cannot authorize an administrator to pay a claim after the claim has been barred from payment under the statute. To authorize payment under these circumstances would in effect nullify the provision in the statute.” Messenger v. Rutherford, 80 Ill.App.2d 25, 225 N.E.2d 94, 94 (1967) (internal citation omitted).
In this case, Susan died in August 2006 owing the Rush providers approximately $80,000 in unpaid medical bills. Susan, though, never paid those medical expenses and Illinois’s two-year limitations period now bars any attempt by the Rush providers to reopen and collect on those unpaid bills5. Without exception. See supra at *686685. And the probate court lacks authority even to authorize James, as administrator, to pay those claims. Accordingly, there is no possibility that Susan’s estate remains liable on the unpaid medical bills.
The court also reasons that this case is not moot because the estate has already suffered a concrete and redressable injury, namely that the Killians were injured by overpaying medical bills representing copay, coinsurance, and annual deductible amounts, which would have been lower had the services been obtained from an in-network provider. Opinion at 660-61. However, James has never claimed, including in his response to the court’s request for supplemental briefing, that they overpaid any of the medical providers because of the defendants’ purported ERISA violations. Rather, James has always maintained that the harm Susan’s estate suffered as a result of the breach was that Susan incurred about $80,000 in unpaid medical bills.
The court’s third rationale for why this appeal is not moot is that “Mr. Killian’s financial affairs are burdened with real uncertainty_” Opinion at 664. Here, the court notes that there is a “sufficiently real possibility that the additional debts may come Mr. Killian’s way,” Opinion at 662, and finds “Mr. Killian’s personal liabilities on Mrs. Killian’s debts” relevant. Opinion at 664 n. 28. There are two problems with this reasoning.
First, Susan’s estate brought this litigation to obtain relief on Susan’s ERISA claims. The court acknowledges that the claim is “Mrs. Killian’s claim,” but adds that James “inherited it, and, in any event, the consequence of the resolution of the dispute, whatever it may be, falls to him alone.” Opinion at 662. But James did not inherit Susan’s obligation to pay Rush; Susan’s estate never paid those bills; and those debts did not reduce the assets that James inherited — there were none. Thus, the alleged harm did not somehow flow to James as part of the probate process.
What the court is doing is conflating the legal interests of Susan’s estate (which James inherited), and James’s unrelated individual interests, reasoning that “the dispute in this case always has been one between Mr. Killian and the defendants over his wife’s coverage and their family’s resulting liability on third-party medical debts.” Opinion at 661. While the dispute underlying this litigation may have always been one between James and the defendants,6 the litigation has always been between Susan’s estate and the defendants. Or as the court explained “[t]he estate is and has always been a construct to resolve this dispute.” Opinion at 662. According*687ly, only those harms which an estate may litigate are relevant. This is a question of standing which concerns the fundamental constitutional limits of this court. Perry v. Sheahan, 222 F.3d 309, 313 (7th Cir.2000).
What then are the harms an estate may litigate? The administrator of an estate may prosecute claims on behalf of a deceased plaintiffs estate which ultimately benefit “the heirs and any other claimants to the estate, such as his creditors.” See Anderson v. Romero, 42 F.3d 1121, 1123 (7th Cir.1994). It is true that should the estate prevail on the denial of benefits and breach of fiduciary duty claims, James, who is the estate’s beneficiary, will benefit. But he will not benefit as a beneficiary. This point is clear if one considers what would happen if James were not a beneficiary of Susan’s estate. James’s purported liability for the medical expenses due the Rush providers is based on the Illinois Family Expense Act. The Illinois Family Expense Act provides that spouses are jointly and severally liable for each other’s medical expenses whether or not they are living together or separately. Mercy Ctr. for Health Care Serv. v. Lemke, 199 Ill.App.3d 958, 146 Ill.Dec. 1, 557 N.E.2d 943, 945-46 (1990). If James were not a beneficiary or heir of Susan’s estate (maybe because of a divorce subsequent to the provision of medical expenses), James would still “benefit” by the estate obtaining an order to pay the Rush providers given that he would have joint liability under the Act. But the benefit to James would not be because of his status as a beneficiary of the estate. Thus, the court is wrong to rely on “persisting uncertainties concerning the future liability of the estate and its beneficiary” to find this case not moot, Opinion at 664, because there is no future liability of James qua beneficiary. And the court’s other explanation for why the estate can seek a remedy for a direct and personal harm to James, namely that James stands before this court as “husband,” is incorrect. Opinion at 662 n. 26. James may now stand before this court in his individual capacity, but the claims remain Susan’s underlying breach of fiduciary duty and denial of benefits claims. Id.7
The statutory penalty claim is a different matter. That claim allows for monetary damages. Consequently Susan’s estate (and James individually) can continue to litigate that claim on behalf of James because as a beneficiary James is entitled to receive those statutory damages.
The entire premise that there is a “sufficiently real possibility that the additional debts may come Mr. Killian’s way” is also wrong. In response to this court’s request for supplemental briefing, James identified only one basis for personal liability — the Illinois Family Expense Act, 750 ILCS 65/15, which as noted above creates joint and several liability for spouses’ medical expenses. Because the Illinois Family Expense Act does not have its own statute of limitations, the catch-all five-year limitation period applies. See 735 ILCS 5/13-205 (2010); Pope v. Kaleta, 90 Ill.App.2d 61, 234 N.E.2d 109, 114 (1967). Susan’s brain surgery at Rush occurred in April 2006 and yet the Rush providers have not initiated litigation against James, so, now — 2013—any claims by them against *688James would be time-barred. Thus, any liability, and in turn harm, that James might have suffered no longer exists8. Accordingly, even if it were appropriate to consider a harm to James in assessing whether Susan’s estate’s denial of benefits and breach of fiduciary duty claims are moot, there is no such harm to James.
James may well wish that the Rush doctors receive additional compensation for their services and may desire vindication for the wrong he perceives. But the test for mootness “is whether the relief sought would, if granted, make a difference to the legal interests of the parties (as distinct from their psyches, which might remain deeply engaged with the merits of the litigation).” Air Line Pilots Ass’n, Int’l v. UAL Corp., 897 F.2d 1394, 1396 (7th Cir.1990). And in this case, the relief sought, namely payment of the outstanding medical bills, no longer makes a difference to the legal interests of Susan’s estate because the estate is not liable for the outstanding medical bills; the Rush creditors no longer have a right to payment from the estate; and James is no longer liable to the Rush providers.
Finally, the court reasons that this case is not moot because of “the possibility of meaningful declaratory relief....” Opinion at 683. The court, though, does not explain what such relief would be, other than suggest that it could be something that relieves James of his personal liabilities on Susan’s claims. Opinion at 664 n. 28. But as discussed above, the estate cannot seek relief in favor of James for his direct and personal liability and in any event there is no such potential liability. Thus, there is no declaratory relief for the purported denial of benefits and breach of fiduciary duty claims that could affect the legal interests of Susan’s estate, its creditors, or its beneficiary qua beneficiary.9
In sum, Susan’s estate sued the defendants alleging a denial of benefits and breach of fiduciary duty under ERISA, asserting as the harm unpaid medical bills totaling approximately $80,000. But now there is no remaining liability on those claims for Susan’s estate, for creditors, for James qua beneficiary, or even for James individually. These facts moot Susan’s estate’s claim because “there is no possible relief which the court could order that would benefit the party seeking it.” In re River West Plaza-Chicago, LLC, 664 F.3d 668, 671 (7th Cir.2011) (internal quotation omitted) (emphasis added). This court has held claims pending on appeal are moot in analogous situations. For instance, when a restitution order was paid by another party while the appeal was pending, this court held that the appeal was moot because “[w]e cannot relieve [a party] of an obligation that has already been extinguished by another party.” United States v. Balint, 201 F.3d 928, 936 (7th Cir.2000). See also Wegscheid v. Local Union 2911, Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., 117 F.3d 986, 990 (7th Cir.1997) (“[A] suit cannot be maintained in a court created under Article III of the Constitution, however egregious the defendant’s conduct, unless the decision would affect the tangible interests of the suit. A decision of this appeal, given that the suitors have obtained all the *689relief that they need to protect themselves ... could not have such an effect.”) (emphasis in original). Here, the obligation to pay has been extinguished by operation of law and not by an act of another party, but the end result is the same. There is no longer a legal obligation to pay and thus a court order would not bestow on Susan’s estate, its creditors, or its beneficiary qua beneficiary, a legal benefit. See Stevens v. Hous. Auth. of South Bend, Ind., 663 F.3d 300, 306 (7th Cir.2011) (“A case is moot when a plaintiff no longer has a legally cognizable interest in the outcome.”). Accordingly, the denial of benefits and breach of fiduciary duty claims are now moot, but the statutory penalty claim remains a live controversy because it allows for money damages.
B. James waived any breach of fiduciary duty claim premised on the two April 7, 2006, telephone calls to Concert and the defendants did not waive that waiver.
Before the district court, James argued that the defendants had breached their fiduciary duty to him by failing to provide a summary plan description. The district court granted the defendants summary judgment on this claim. James then filed a motion to reconsider, arguing for the first time that the defendants also breached their fiduciary duty by not informing him of the out-of-network status of the Rush providers during his April 7, telephone conversations with Concert. The district court denied James’s motion to reconsider, holding that it was too late to raise an argument premised on the April 7 telephone conversations.
By not presenting a timely argument to the district court premised on the April 7 telephone calls, James waived any argument that the defendants breached their fiduciary duty based on those telephone calls. Publishers Res., Inc. v. Walker-Davis Publ’ns, Inc., 762 F.2d 567, 561 (7th Cir.1985) (holding that a litigant who fails to raise an argument in opposition to a properly raised motion for summary judgment will not be permitted to raise that same argument later, either in a motion for reconsideration or on appeal). The en banc court, though, holds that the defendants waived James’s waiver by failing to assert waiver in this court10. Opinion at 658 n. 22. But the defendants had no reason to assert waiver in this court because James did not develop a breach of fiduciary duty argument in his appellate briefs premised on the April 7 telephone calls. Therefore, the defendants did not waive Killian’s waiver.
Moreover, while a party can waive a waiver by failing to raise it, the waiver doctrine is “designed for our own protection as much as that of an opposing party, and therefore need not be asserted by a party for us to invoke it.” United States v. Hassebrock, 663 F.3d 906, 914 (7th Cir.2011). This case presents such a circumstance — one where, even if the defendants are deemed to have not asserted waiver, the court should. James litigated this case for years before the district court and never developed a breach of fiduciary duty argument premised on the two telephone calls to Concert. Consequently, neither James nor Concert developed the record concerning those telephone calls. And not only did the parties not develop the record concerning those telephone calls, they did not identify for the court the relevant portions of the record related to those tele*690phone calls. This appeal involves a record of over 4,000 pages and the only way this court can properly and fairly address a breach of fiduciary duty claim premised on those two telephone calls is for the court— without the aid of the parties — to tediously sift through the record to understand exactly what happened (or rather, what inferences the record could reasonably support). That review, as discussed at length below, leads me to conclude that even absent waiver, James cannot prevail on a breach of fiduciary duty claim premised on the two telephone calls. But this court should not undertake such a review in the first instance and should hold James to his waiver.
C. James cannot prevail on a breach of fiduciary duty claim premised on the two April 7, 2006, telephone calls to Concert because James made both calls for precertification of Susan’s hospital admission and not to inquire on the network status of the Rush providers. And the enrollment packet Susan received clearly informed insureds of the reimbursement rates for out-of-network providers and how to inquire on a provider’s network status. Further, nothing James said to the Concert representatives put them on notice that he was concerned about the Rush providers’ network status. Accordingly, Concert did not have a fiduciary duty to inform James that the Rush providers were out-of-network.
Even if Susan’s breach of fiduciary duty claim were not moot, the claim fails on the merits. “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.” Kenseth v. Dean Health Plan, Inc., 610 F.3d 452, 464 (7th Cir.2010). The en Banc court holds that a reasonable finder of fact11 could find that the defendants breached their fiduciary duty to Susan by not informing James that the Rush providers were out-of-network and that this breach of duty harmed James. Opinion at 669-70. For the reasons detailed below, I disagree.
1. James did not call the PHCS dedicated provider participation telephone number on April 7, 2006. Rather James called Concert twice at the same number, which was listed three times on Susan’s insurance identification card, twice for utilization review and once for customer service.
The en Banc court notes that to review Susan’s breach of fiduciary duty claim the court must focus on the two April 7, 2006 telephone calls, Opinion at 666, so I begin there as well.
In discussing the first telephone call James made on April 7, 2006, the en Banc court states that James called the “provider participation” number listed on the front of Susan’s insurance card.12 Opinion at 655-56. The panel decision also assumed that to be the case, while noting that no *691matter which number James called, there was no breach of fiduciary duty. Killian I, 680 F.3d at 759. But, as discussed below, by inferring that James called the PHCS dedicated provider number, both the panel decision and the en Banc decision reflect a misunderstanding of the record, which is understandable given that James waived the argument and the parties never briefed the issue or provided record support for their differing views on which telephone number James called.
Contrary to the panel decision and the en Banc court’s conclusion today, the record does not support a reasonable inference that James called the PHCS dedicated provider participation number. In fact, in his Rule 56.1 Statement of Facts, James never claimed he called the PHCS dedicated provider line, but merely stated he “called one of the 800 numbers on the card” and that he “called another number on Susan’s insurance card.” R.266 at 2. Nor did James claim in his affidavit that he first called the dedicated provider line, stating instead: “I called one of the 800 numbers on the card.” R.266-2 at 2. Then, in his deposition testimony, James first testified: “[t]here were two numbers on the medical card. I believe one was for — I believe one of them was for determination of eligibility of benefits and one was for admittance or a customer service number. So I believe I called the customer service number first and later on I called back....” R.115-3 at 71-72. As the deposition continued, though, when asked again about the telephone calls, and specifically which number he called first on April 7, James stated “I believe it was the top number,” the [800-242]-6679 number13. R.115-3 at 117-18. (The number at the very top of the card is the PHCS dedicated provider participation number.) And that when he called the second time he “believe[d] it was the second number,” the customer service number, 866-818-3106. R.115-3 at 118.
James’s deposition testimony was thus contradictory concerning which number he initially called on April 7. This contradiction is not fatal to James’s case, given that this is summary judgment and the record must be viewed in the light most favorable to the non-moving party. But it does show that James is unclear about what number he actually called on April 7, which is most likely why he did not assert in his Rule 56.1 Statement of Facts that he called the PHCS dedicated provider line. R. 266 at 2.
While James’s uncertainty might not doom his case, his testimony about the telephone calls makes clear that it was impossible for him to have first called the PHCS dedicated provider-line number. Specifically, in explaining in his deposition what transpired on April 7, James stated that when he called back the second time, “I talked to a woman named Maria and I said something about, ‘I’m trying to get confirmation that we are going to be — my wife is going to be admitted to Rush.’ Again, I said — she just said, like she knew who I was, she said, ‘Oh, you mean St. Luke’s,’ and she laughed and she sounded like she was talking to the person next to her. That there were two different phone *692numbers but they were sitting next to each other. I believe they were 800 numbers. She said, ‘You mean Rush Presbyterian.’ ” R.115-3 at 72. James reiterated this point in his affidavit, stating when he called back the second time, “[w]hen Maria heard me say ‘St. Luke’s’ she laughed and said to a colleague, ‘It’s the guy from St. Luke’s.’ ” R.87 at 2.
It is impossible for this scenario to have transpired as James recounted if he had called the PHCS dedicated provider line because, as the record establishes, Concert does not run the dedicated provider line. The PHCS network does. R.115-3 at 200. The only way for the second operator to quip to the coworker sitting next to her that it was the guy from “St. Luke’s” would be if James had called the Concert number both times, and in the interim, the two Concert representatives were discussing James’s first call. And the number for Concert was listed on Susan’s insurance identification card three times, twice on the front of the card, once for customer service and once for utilization review, and once on the back of the card for utilization review. Thus, given James’s own testimony, it was impossible for James to have first called the PHCS line dedicated to determining provider participation status. He must have instead called Concert both times.
Admittedly, the record is not well developed on this point and for a very simple reason: James never claimed that he called to determine Rush’s network status and instead testified expressly and clearly in his deposition that he called to inform Concert that Susan was being admitted to the hospital14. See infra at 694-97. And James never developed a breach of fiduciary duty claim before the district court premised on these telephone calls; his mention of them in his appellate briefs was also fleeting. Accordingly, there was no reason for Concert to develop an argument about these telephone calls, to conduct further discovery concerning the telephone calls, or to point the court to the portions of the record related to these telephone calls and the management of the dedicated provider line by PHCS. Thus, James’s waiver prejudiced Concert because it could have sought additional discovery, which might more clearly negate James’s current argument that he called the PHCS dedicated provider line to determine Rush’s network status.15
*693In fact, this entire discussion aptly illustrates why the waiver doctrine is also designed for the court’s own protection. Throughout the panel and en Banc decisions, the opinions contradictorily state that James’s first call on April 7 was to Concert and to the dedicated provider line. See Killian I, 680 F.3d at 752, 757, 759-60; Opinion at 655-56, 666, 668-69. But if the first call was made to the PHCS dedicated provider line, then the first call could not have been made to Concert because, as the record does establish, the PHCS network operates the 800 number that individuals can call to determine if a provider is in the caller’s network16. R.115-3 at 200.
The en Banc court sidesteps the issue by stating that Concert has never disputed the fact that James’s first call was to the dedicated provider line and the second call was to the Concert customer service line. Opinion at 656 n. 17. But Concert. did. During oral argument, Concert’s counsel stated that James did not call the dedicated provider line number. The en Banc court challenged the attorney on this point several times, and after realizing the en Banc court’s confusion, Concert’s attorney explained why, given James’s testimony, it was impossible for James to have called the dedicated provider-line number: Concert and PHCS Network are two distinct entities, each with separate 800 numbers, separate physical locations, and different employees. Because this was never an issue before, Concert never raised it before. And because in his Rule 56.1 Statement of Facts James never asserted that he had called the dedicated provider line, there was nothing to dispute. R.266 at 2.
Our review of summary judgment orders requires us to view all reasonable inferences in the light most favorable to the non-moving party. But “if the factual context renders the claims asserted by the party opposing summary judgment implausible, the party must ‘come forward with more persuasive evidence to support their claim than would otherwise be necessary.’ ” McDonnell v. Cournia, 990 F.2d 963, 967 (7th Cir.1993) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The factual context laid out above renders James’s recollection of first calling the dedicated provider line impossible. Rather, given his testimony, James must have called the same Concert customer service/utilization number twice on April 7.17
The court incorrectly assumes that James first called the PHCS dedicated provider line. And that assumption is the lynchpin to the en Banc court’s conclusion that a reasonable finder of fact could find the defendants had a fiduciary duty to inform James that the Rush providers were out-of-network. See Opinion at 666 (“Because this line was dedicated to in*694forming beneficiaries whether providers were in network, Concert knew (or at the very least, should have known) that beneficiaries would call this line to determine a provider’s network status.”); Opinion at 668 (“Given his earlier telephone conversation, a reasonable trier of fact certainly could conclude that any further information as to whether the providers were in Mrs. Killian’s network would have been provided in the course of this conversation regarding the authorization of the particular procedure.”); Opinion at 668 (“It would be reasonable to infer that this [second] representative knew that Mr. Killian had attempted to determine whether ‘St. Luke’s’ was in Mrs. Killian’s network during Mr. Killian’s prior call to the number for determining provider participation.”); Opinion at 669 (“[T]he second representative’s comments suggest that she was aware of the earlier call to the network provider number.”). But because the record does not support a reasonable inference that James called the dedicated provider line, that cannot serve as a basis for inferring that James was calling to determine the network status of the providers. And as discussed below, James did not call Concert on April 7 to determine the Rush providers’ network status, but, as he testified, he called because Susan was being admitted to the hospital and “you had to call for preadmission.” R.115-3 at 72-73.
2. James called Concert twice on April 7, 2006, to inform Concert that Susan was being admitted to the hospital, as required by the insurance policy’s precertification provisions. James did not call to inquire about the network status of the Rush providers and nothing James said would put the Concert telephone representatives on notice that James was concerned about the providers’ network status.
The en Banc court concludes that a reasonable trier of fact could conclude that James called Concert to determined whether the Rush providers were in Susan’s network, Opinion at 666-67, and that “Concert was aware (or, at the very least, that it should have been aware) that Mr. Killian was attempting to determine whether Rush and the physicians who were about to perform surgery on Mrs. Killian were within Mrs. Killian’s network.” Opinion at 666. I disagree.
First, the record does not support the conclusion that James called Concert to determine whether the Rush providers were in Susan’s network. In fact, in his deposition James himself negates any such inference — twice. After summarizing the first telephone call, James stated: “So that was my reason of the phone call to tell them she was going to be admitted to the hospital. And we never determined anything. She said — I believe she said, ‘Give me a call back.’ ”18 R.115-3 at 71. Second, *695after discussing both telephone calls, the defendants’ attorney asked James: “What was it that prompted you to call on April 7th?” James responded: “What prompted me to call? The fact that she was going to be admitted to a hospital and the fact that you had to call for preadmission.”19 R.115-3 at 72-73. When asked who told him you had to call for preadmission, James stated “I believe I read it on the card.”20 R.115-3 at 73.
Significantly, James never stated in his deposition, or in the affidavit that he filed in this case, that he called Concert on April 7 to determine whether the Rush providers were in network. Had that been the purpose, or even a purpose of the call, James’s attorney could (and would) have asked James whether he had called on April 7 to also determine the Rush providers’ network status. But his attorney did not, even though in his complaint James specifically alleged that he “called Concert Health Plan Insurance Company to confirm that Rush University was a network provider under the Concert Health Plan (or Royal Management Corp. Health Insurance Plan).” R.119-2 at 10. Thus, even though James alleged in his complaint that he called to confirm the Rush providers’ network status, when it came time to come forward with proof to support that allegation, James remained silent 21.
“The purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). James presented no evidence that he called Concert on April 7, 2006, to determine the network status of the Rush providers and he easily could have made such a statement in his affidavit or deposition testimony. Because “[a] non-moving party cannot simply rest on its allegation without any significant probative evidence tending to support the complaint,” id. at *696249, the court is wrong to infer that James called to determine the Rush providers’ network status when he had the opportunity to say he did so for that reason, but did not; and in fact stated a different purpose when asked, under oath, for the purpose of the call.
Second, even if James subjectively intended to determine the network status of the Rush providers when he called Concert on April 7, the Concert representatives had no reason to know that that was a purpose of James’s April 7 telephone calls. In discussing the April 7 exchanges, James explained that he told the representatives that “Susan is going to be admitted”; “I’m trying to get confirmation that we are going to be — my wife is going to be admitted to Rush”; “she is going — they want to admit her because we already determined the tumor had to come off’; “I said she was being admitted to the hospital and they were going to do the surgery.... Brain surgery.” R.115-3 at 71-72, 124. Nothing James said during these conversations put the Concert representatives on notice that a purpose of his call was to learn the network status of the Rush providers. Rather, a reasonable representative would believe that James telephoned Concert because Concert required insureds to notify it of hospital admissions— since that was what James told the telephone representatives. As James said, in his own words: “I said she was being admitted to the hospital and they were going to do the surgery.... Brain surgery.” Under these circumstances, it is not reasonable to expect the representa-five to have “instructed Mr. Killian that she was unable to locate an entry in her system for ‘St. Luke’s’ and that she could make no representations at that time as to whether the provider was in-network.” Opinion at 667.22
3. Kenseth v. Dean Health Plan, Inc., 610 F.3d 452 (7th Cir.2010), is not analogous to the Killians’ situation. In Kenseth, the insured specifically asked whether an upcoming surgery would be covered under her insurance policy and was told by a representative of the insurance company that it would be, but the insurance company later denied coverage. The Certificate of Insurance in that case was ambiguous on whether there was coverage and failed to identify a means by which a participant could obtain an authoritative determination on a coverage question. The Certificate also invited participants to call customer service with coverage questions but did not warn them that they could not rely on any advice they received. Ken-seth I, 610 F.3d at 469-78. Here James did not ask the Concert representatives any questions, but merely informed them that Susan was being admitted to the hospital. And Susan’s Certificate of Insurance was clear on the different levels of reimbursement for in-network and out-of-network providers and on how to determine the network status of a provider.
*697In holding that a reasonable finder of fact could conclude that the defendants breached their fiduciary duty to Susan by not informing James during the April 7, 2006 telephone calls that the Rush providers were out-of-network, the court relies extensively on Kenseth v. Dean Health Plan, Inc., 610 F.3d 452 (7th Cir.2010). But in doing so, the court separates the language of Kenseth from the facts in that case.
In Kenseth, the plaintiff had undergone a vertical banded gastroplasty (“VBG”), often colloquially referred to as a “stomach-stapling,” in 1987. Id. at 457. Years later, as a complication of the VBG, Ken-seth began to suffer from gastric stenosis, which in turn caused her “to experience a variety of aliments,” including severe acid reflux, erosion of the esophagus, pneumonia, and severe hair loss. Id. To address these problems, Kenseth underwent an endoscopic procedure which initially resolved the problem. Id. at 458. But after it recurred, Kenseth saw a bariatric surgeon, Dr. Huepenbecker, who recommended that Kenseth “undergo a Roux-en-Y gastric bypass procedure as a longer-term solution to the complications.” Id.
Prior to the surgery, Kenseth contacted her health insurance company, Dean Health Plan, to determine whether the surgery would be covered by insurance. Id. at 459. The Certificate of Insurance encourages participants to do so, stating: “If you are unsure if a service will be covered, please call the Customer Service Department ... prior to having the service performed.” Id. at 458. Kenseth spoke with a customer service representative, Maureen Detmer, and “averred that she told Detmer she would be having ‘a reconstruction of a Roux-en-Y stenosis, [sic]’ 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.’ ” Id. at 459-60. After checking with her supervisor, Detmer advised Kenseth that the procedure would be covered by her insurance, subject to a $300 copayment. Id. at 460. Based on these assurances, Kenseth underwent the surgery on December 6, 2005. Id.
The day after the surgery, Dean (which under its policy was not bound by oral representations concerning coverage) denied coverage for Kenseth’s surgery and all associated services based on two provisions in Kenseth’s health insurance policy. First, the policy listed non-covered services as “[a]ny surgical treatment or hospitalization for the treatment of morbid obesity.” And in the “General Exclusions and Limitations” provisions was an exclusion for “[sjervices and/or supplies related to a non-covered benefit or service, denied referral or prior authorization, or denied admission.” Id. at 457. Because complications from Kenseth’s earlier VBG surgery necessitated Kenseth’s Roux-en-Y surgery, Dean concluded that the 2005 sur*698gery was not covered; it similarly concluded that there was no coverage for a second hospital stay necessitated by complications of the 2005 surgery. Kenseth was left with approximately $78,000.00 in medical bills.
Kenseth sued, alleging claims under state law and under ERISA for breach of fiduciary duty and equitable estoppel. The district court granted Dean summary judgment and on appeal this court reversed on the breach of fiduciary duty claim, stating:
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.
Id. at 464.
As this summary of Kenseth makes clear, the Killians’ situation now before us is nothing like Kenseth. In Kenseth, the insured called and asked whether there would be coverage for a specific surgical procedure. Here James called and informed Concert that Susan was being admitted to the hospital and made no inquiry about the Rush providers’ network status or the reimbursement rates for the medical services. In Kenseth, the insurance agent, after checking with her supervisor, erroneously stated that the procedure the plaintiff asked about would be covered. But after the operation, the insurance company denied coverage. Here the insurance company did not make any representations to James concerning whether the Rush providers were in-network or out-of-network and did not deny coverage for Susan’s brain surgery. In Kenseth, the certificate was ambiguous concerning whether the Roux-en-Y surgery was a covered procedure. With Susan, the certificate of insurance was clear concerning: (1) the reimbursement rates paid to in-network and out-of-network providers; (2) an insured’s responsibility for any expenses above the maximum allowable fee for out-of-network providers; (3) the need to inquire on the network status of the providers either via telephone or on-line; (4) an insured’s right to choose any provider they wished; and (5) an insured’s obligation to notify Concert of any hospital admissions for pre-certification that the procedure was medically necessary. In Kenseth, this court held that the insurance company had a duty to disclose to callers that they could not rely on representations made by agents of the insurance company that a medical procedure was covered. That duty to disclose was directly related to the question Kenseth asked and which the insurance company answered, namely whether surgery to perform a Roux-en-Y was covered by the insurance policy. See Kenseth, 610 F.3d at 472 (the fiduciary exposes itself to liability for the mistakes that plan representatives might make in answering questions on that subject) (emphasis added). Here, the information that the Concert representatives provided *699James (i.e., that he could go ahead23 with whatever had to be done and that a hospital admission for brain surgery was “okay”) concerned precertification and whether the procedure was medically necessary24. James’s statement that Susan was being admitted for brain surgery and Concert’s “okaying” of that procedure as medically necessary, were unrelated to the question of the network status of the providers25. And finally in Kenseth, the insured was not told how to definitely determine whether there was coverage. Here, insureds were told how to determine if a provider was in-network or out-of-network, including by calling Concert or the PHCS provider line or going on-line. Kenseth is therefore distinguishable.
Notwithstanding these stark differences between Kenseth and the facts of this case, the en Banc court relies on several passages in Kenseth which summarize general breach of fiduciary duty principles to support its holding. But even those passages from Kenseth do not support a breach of fiduciary duty claim here. For instances, the en Banc court relies several times on passages from Kenseth discussing the fiduciary duty owed to insureds when the insured “requests] information” or poses “questions” to the fiduciary. See, e.g., Opinion at 664-69.
But in this case, James did not request any information or pose any questions. Rather, during both telephone calls, James stated a fact — that Susan was being admitted for brain surgery26. And Susan was required by her policy to call Concert and inform them of any hospital admissions, at which point Concert would inform the insured if something further was required (i.e., “if Preservice Review and Precertifi-cation of the treatment plan is required” by Concert). R.77-3 at 34. So we do not have a case where the mere making of the telephone call implies a question.
Likewise, “the only status and situation,” Opinion at 664-65, 668-69 (quoting Kenseth, 610 F.3d at 466), “circumstance,” Opinion at 664-65, 666 (quoting Kenseth, 610 F.3d at 466), or “predicament,” Opinion 665 (quoting Kenseth, 610 F.3d at 467), of which Concert knew was that Susan had *700already seen her doctor and was being admitted for brain surgery. Nothing James said in either telephone conversation put Concert on notice that the “situation,” “circumstance,” or “predicament” was that James was inquiring about the network status of the Rush providers. Accordingly, those passages from Kenseth provide no support for the en Bane court’s decision.
The court again quotes Kenseth when reasoning that James “should not be penalized because he failed to comprehend the technical difference between ‘ [go ahead]’ and ‘[the provider is in-network].’ ” Opinion at 667 (quoting Kenseth, 610 F.3d at 467)27. This case, though, does not involve a “technical difference,” but rather two very fundamental and distinct concepts easily understood by the average layperson: (1) An insured must notify the insurance company of a hospital admission for pre-certification that the procedure is medically necessary; and (2) the reimbursement rate for medical providers will depend on the network status of those providers. The enrollment documents provided to Susan explained both of these points clearly and in simple, understandable terms. In short, there is no technical question involved.
Finally, the Certificate of Insurance and the enrollment packet28 Susan received were not “silent or ambiguous” on the relevant issues. See Opinion at 665, 670 (quoting Kenseth, 610 F.3d at 472). Rather, these documents were absolutely clear on the differing levels of reimbursement for in-network and out-of-network providers and that insureds were responsible for charges above the maximum allowable fee. The documents were also clear on how an insured could determine network status, providing both directions to call the PHCS network number or to find the information on-line.29 Further, the documents clearly explained the importance of notifying Concert of any hospital admissions for pre-certification of medical necessity. Because *701the enrollment packet Susan received clearly explained all of the relevant provisions, the defendants did not have a fiduciary duty to remind James of the basic terms of Susan’s health insurance coverage, such as that payment reimbursement rates depend, in part, on the providers’ status as in-network or out-of network. See, e.g., Griggs v. E.I. DuPont de Nemours & Co., 237 F.3d 371, 381 (4th Cir.2001) (“ERISA does not impose a general duty requiring ERISA fiduciaries to ascertain on an individual basis whether each beneficiary understands the collateral consequences of his or her particular election.”); Maxa v. John Alden Life Ins. Co., 972 F.2d 980, 985-86 (8th Cir.1992) (finding no fiduciary duty “individually to notify participants and/or beneficiaries of the specific impact of the general terms of the plan upon them”); Harte v. Bethlehem Steel Corp., 214 F.3d 446, 454 (3d Cir.2000) (stating it is “uncontroversial ... that a fiduciary does not have to regularly inform beneficiaries every time a plan term affects them”)30
D. Susan’s denial of benefits claim is moot because she never paid the Rush providers and her estate has since been closed, so there is no longer any harm to Susan or her estate. If her claim were not moot, remand is most expeditious.
As explained above, Susan’s denial of benefits claim is moot. However, if that claim were not moot, I remain comfortable with the panel’s decision, namely directing the parties to submit a stipulation concerning the network status of the Rush providers on remand. Opinion at 654 n. 3, 657 n. 20. At this point, that solution seems the most expedient. However, should the parties be unable to agree to a stipulation, the district court can easily resolve the issue on remand on the basis of the current record. Specifically, the district court can rely on the deposition testimony of Johny Antony, the Vice President of Operations for Concert, R.115-3 at 250, 270, and correspondence between Concert and University Anesthesiologists, to confirm the network status of the Rush providers. R.77-7 at 7,11.
III. CONCLUSION
James suffered a tragic loss, and finding out that Susan’s health insurance did not cover about $80,000 in medical expenses only added to his grief. James deserves sympathy, but in the final analysis, the mistake was the Killians’ and not the defendants’. Once they received Susan’s dire and devastating diagnosis they did not consult with, or consider the terms of, Susan’s health insurance plan. This is entirely understandable, but their mistake does not create liability for the defendants. And in creating such liability today, the court’s decision has wide-spread ramifications. Health insurance is already expensive. And the court’s holding will only further increase the cost of health insurance because insurance companies, to prevent being ■ held liable for expenses not covered by their policies, will require their representatives to review the policy provisions with each caller. This is not a no-cost proposition: It costs insurance companies money to staff telephones and the *702more policy terms the representatives must cover, the more it will cost. And the higher the administrative expenses, the fewer dollars spent on health care — and the higher the premiums. Insureds then may not be able to afford the policy they prefer and instead may opt for a less costly option with more restrictions. That is what Susan did in this case: Susan selected a less expensive health insurance plan that used the PHCS-Open Access Network, and that choice left Susan were fewer options and higher out-of-pocket expenses. While it is understandable to feel sympathy for those facing significant medical bills, we cannot bend the law to protect individuals from their own choices and their own mistakes.31
Health insurance is also complicated. It must be in order to address the multitude of potential health care scenarios. ERISA requires a Summary Plan Description (“SPD”) for that very reason — to provide lay people a straightforward explanation of the terms of their health insurance coverage. And I agree with the court that the defendants did not provide an SPD which complied with ERISA and that statutory penalties are appropriate for that failure. But the failure to provide an SPD that complied with ERISA did not harm Susan because the defendants provided Susan with an enrollment packet that clearly explained all of the provisions relevant to Susan’s situation. Specifically the enrollment packet explained the reduced reimbursement rates paid to out-of-network providers and how to determine if a provider was in the PHCS-Open Access Network. Yet there is no evidence that Susan or James inquired whether Rush was within her network. Unfortunately it was not, and as a result Susan was left with hefty medical bills, although in the end neither Susan, James, nor her now-closed (for purposes of creditors filing claims) estate paid these bills. And there is no longer any legal liability on those unpaid bills. In the final analysis that makes this case, for the most part, moot. Remanding to hold the defendants liable for statutory damages for their violations of ERISA is appropriate. But no more. I CONCUR IN PART and DISSENT IN PART.
.James was not insured under Susan’s health insurance policy and was not involved in Susan’s decision to enroll in the Concert health care option "S035 Open Access,” which used the PHCS Open Access network. R.115-3 at 15-16, 19-20. James also did not know what information Susan had received upon enrolling in the Concert plan. R.115-3 at 19; 138— 139.
. Specifically, Susan continued to receive bills from Rush University, University Anesthesiologists, and Chicago Institute of Neurosurgery. R.218-6 at 1.
. The Concert policy covered 50% of out-of-network expenses for hospitalizations, subject to the maximum allowable fee. R.259-5 at 3.
. After learning of the Killians’ situation, Concert did write the Rush providers on Susan's behalf and requested that they not bill Susan for charges above the reimbursement rate. R.77-7 at 11. The Rush providers, though, were not contractually obligated to do so and apparently demurred because they continued to bill Susan for the higher fee amounts.
. The court relies on Schloegl v. Nardi (In re Estate of Perrine), 92 Ill.App.2d 302, 234 N.E.2d 558, 561 (1968), for the proposition that "[i]n Illinois, the fact that an estate is closed may, but does not necessarily, preclude creditors from bringing claims against it.” Opinion at 662. The court notes that subsequent cases have distinguished Schloegl, but that none of those cases "rejected its conclusion that a claim may be brought against an *686estate if the time for bringing such claims has not expired.” Opinion at 662. Schloegl is not relevant to the case at hand because Schloegl involved a claim brought within both the governing statute of limitations and the probate’s limitation period. But in this case, the Rush providers did not file a claim within the probate act’s two-year limitations period, as required by Section 18-2. Illinois law is clear that Section 18-2 "imposes additional time constraints for making certain claims against a decedent’s estate.” Vaughn v. Speaker, 126 Ill.2d 150, 127 Ill.Dec. 803, 533 N.E.2d 885, 888 (1988) (emphasis in original). And a "court has no power or jurisdiction to entertain a petition against an estate after the statutory period has passed.” In re Marriage of Epsteen, 339 Ill.App.3d 586, 274 Ill.Dec. 379, 791 N.E.2d 175, 185 (2003).
. In stating that the dispute in this case has always been between James and the defendants, the court incorrectly posits that “the creditors appear to have pursued the path of least resistance and billed Mr. Killian directly.” Opinion at 661. There is no evidence in the record, though, to support this assumption; in fact, all of the bills, and later the various demand letters from collection agencies, were addressed to Susan Killian, not James. See, e.g., R.77-4, R.77-3 at 59.
. A more difficult question is whether an estate has standing to litigate a breach of contract claim solely for the benefit of a third-party beneficiary of that contract. The defendants argue that James is not a beneficiary of the Concert Health Plan and therefore the estate cannot litigate on his behalf. The court, though, does not rely on a third-party beneficiary theory to justify the estate's standing to litigate a purported harm to James. And such a theory surely would not extend to a breach of fiduciary duty claim.
. The court notes that limitations periods may be tolled "if the party to be charged makes a partial payment, or new written promise to pay.” Opinion at 663 (citations omitted). James turned over during discovery the documents related to the unpaid Rush bills. These documents showed no partial payments and no written promise to pay.
. I believe the record makes clear that these claims are moot. However, if there were any question of mootness, the appropriate course of action would be to remand to the district court for the record to be clarified on the question of mootness, without the court addressing the merits of the claims. See Rice, 404 U.S. at 248, 92 S.Ct. 402.
. Contrary to the court’s assertion that the panel had originally found no waiver, Opinion at 658 n. 22, Killian I bypassed the issue of waiver because Killian lost on the merits of his claims. See Killian I, 680 F.3d at 757-58 (stating "we will bypass the waiver issue altogether and will address both of James's arguments only on the merits”).
. Because § 502(a)(3) authorizes only "equitable relief” there is no right to a jury trial. McDougall v. Pioneer Ranch Ltd. Partnership, 494 F.3d 571, 576 (7th Cir.2007); Nat’l Sec. Sys., Inc. v. Iola, 700 F.3d 65, 79 n. 10 (3d Cir.2012); Cox v. Keystone Carbon Co., 861 F.2d 390, 393 (3d Cir.1988).
. The en Banc court also states that "[T]he Killians did not contact Concert before meeting with Dr. Bonomi because their plan to see *691Dr. Bonomi for a second opinion did not depend on whether he was in Mrs. Killian's network.” Opinion at 655 (emphasis added). James, though, did not testify why he had not contacted Concert before Susan's appointment, and, in fact, stated that he did not know whether or not Susan had contacted Concert or reviewed the network provider list on the Concert website prior to meeting with Drs. Barnes and Bonomi. R.115-3 at 30-31, 121.
. The deposition transcript reads ”824-6679,” R.115-3 at 118, which is presumably a typographical error because the card lists the number for PHCS as 242-6679.
. The court states that while James used the word “preadmission” in his deposition when telling the attorneys the purpose of his call, he did not testify that he told the representatives that he was calling for "preadmission.” Opinion at 669 n. 45. The court then states that the interaction with the representatives included "informing the representative of his location and telling the representative of the needed surgery.” Opinion at 669 n. 45. It is true that James never testified that he used the technical term "preadmission” when talking to the representatives. But he did testify that he told them: “Susan is going to be admitted”; "I’m trying to get confirmation that we are going to be — my wife is going to be admitted to Rush”; “she is going — they want to admit her because we already determined the tumor had to come off”; "I said she was being admitted to the hospital and they were going to do the surgery ... Brain surgery.” R.115-3 at 71-72, 124.
. For instance, during James’s deposition, the defendant’s attorney asked where he made the two telephone calls from, ascertained they were made from a cell phone, that James still uses that cell phone, and confirmed the carrier. R.115-3 at 152-53. The defendants could have subpoenaed the telephone records to confirm the telephone number James called on April 7, 2006, but never did. But they had no reason to do so because James never claimed that he called to determine network status or that the telephone calls served to establish a separate breach of fiduciary duty claim. The defendants could also have attempted to obtain an affidavit from the representatives who fielded James's *693calls to further establish that they came into the same call center.
. Concert cannot be held liable for a breach of fiduciary duty based on the actions of a non-fiduciary like PHCS. See Kenseth, 610 F.3d at 465 (explaining that "[f]mding that plan administrators may breach a fiduciary duty 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 fiduciaries”) (internal quotation omitted).
. The court responds that the record does not establish whether Concert shared facilities or employees with PHCS and therefore we cannot assume that they did not. Opinion at 669 n. 45. But it is not reasonable to infer that two separate legal entities share facilities or employees, absent some evidence that they do. And there is none in this case.
. While acknowledging that James testified that he and the Concert representatives "never determined anything” during the first telephone call, the en banc court then states that James "also testified that, at the end of the two calls, he believed that Mrs. Killian’s surgery would be covered ' [b]ecause nobody ever said these [providers] are out-of-network.’ ” Opinion at 666. However, contrary to the court’s statement, James never testified that "at the end of the two calls, he believed that Mrs. Killian's surgery would be covered.” Opinion at 666. Rather, during James’s deposition, James was asked why he believed, as attested to in his affidavit, "that Susan’s medical bills would be covered by Concert Health Plan and [why he] had no reason to believe they would not be covered.” R.115-3 at 135. To that question, James responded: "Because nobody ever said these are out-of-network. They are out-of-pocket expenses that you are going to have to incur. You see enough people, you think somebody would have said something.” Id. The exchange continued: "Q: At no time did any of the treating physicians or hospitals tell you that they were out-of-network? A: No.” Id.
.The court states that "Mr. Killian testified that, in making the second telephone call, he was calling 'for preadmission,' as he was instructed to do by Mrs. Killian's insurance card.... Taking these facts in the light most favorable to Mr. Killian, a reasonable trier of fact could conclude that Mr. Killian made the second call to obtain the required ‘certification,’ or ‘UTILIZATION REVIEW,’ for his wife's surgery.” Opinion at 667 (emphasis added). The record indicates otherwise. As just quoted, after discussing both telephone calls, James was asked "[w]hat was it that prompted you to call on April 7th?” R.l 15-3 at 72-73. James responded "[t]he fact that she was going to be admitted to a hospital and the fact that you had to call for preadmission." Id. Moreover, as noted above, in discussing the first telephone call, James stated "[s]o that was my reason of the phone call to tell them she was going to be admitted to the hospital.” R.115-3 at 71. According to James’s own testimony, he made both calls for the same purpose — because Susan was being admitted to the hospital and you needed to call for preadmission.
. The documents provided to Susan also clearly laid out the importance of informing Concert of hospitalizations. James, who was not covered by the insurance and had not reviewed any of the enrollment information Susan received, knew this from the insurance card and also because he and Susan had just gone through the same process when Susan had been admitted to Delnor hospital. R.115-3 at 263-64.
. In his deposition, James also testified that prior to her admission at Delnor, Susan had a CAT scan at a facility in St. Charles and that he never called Concert to determine if the facility was in network; he did not know whether Susan had called. R.U5-3 at 120. He also did not know whether Susan had called to determine Delnor’s network status. R.115-3 at 40. In fact, it appears that some of the doctors at Delnor were not in Susan’s network. R. 115-3 at 114.
. The court’s reasoning that "[t]he first Concert representative’s attempt to locate 'St. Luke’s’ suggests that she was aware of his need to determine Rush’s network status,” Opinion at 669, is also misplaced. To document an insured’s hospital admission, Concert would need to record the name of the hospital and Concert's attempted to locate “St. Luke’s” therefore does not suggest that the representative was aware of James’s need to determine the network status. The court also reasons that Concert "should have known that beneficiaries such as Mr. Killian would be calling this line [the customer service/utilization review number] to determine whether certain providers were in their network.” Opinion at 668. But that same number was given for utilization review and customer service. Opinion at 667-68. Thus, Concert representatives could expect to be *697told of hospital admissions or asked question on any topic regarding the health insurance plan, and there is no reason they would automatically infer that a caller to that number was seeking to determine the network status of a provider.
. In discussing the "go ahead” given James, the court states that James was not warned "that the ‘go ahead' was not to be understood as an authorization.” Opinion at 667. But the “go ahead” was an authorization of the only thing which needed to be authorized — a hospital admission. Concert did not need to authorize treatment by out-of-network providers, as "the choice of provider is [the insured’s.]” R.77-3 at 5, 11-12.
. The Certificate of Insurance explained what Concert would do upon receiving notice of a hospital admission, stating it would advise the insured "if Preservice Review and Precertification of the treatment plan is required” by Concert. R.77-3 at 34. A "go ahead with whatever needs to be done” and an "okay,” confirmed the admission and that Concert did not require any additional review to certify the hospital admission. R. 115-3 at 239.
. As noted above, the Certificate explained that precertification review was a determination of whether a medical service was medically necessary and that "[p]recertification of medical necessity is subject to the limitations, exclusions, and provisions of this certificate-” R.77-3 at 23.
. Brain surgery is obviously medically necessary and it therefore makes sense that the first Concert representative told James to "go ahead with whatever had to be done,” but to call back when he knew the correct name of the hospital. R.259-5 at 124-25. Similarly, once James called back and the Concert representatives had determine the correct name of the hospital (Rush), there was nothing to do but "okay” the hospital admission. And Johny Antony, the Vice President of Operations for Concert, confirmed in his deposition that approval was given for the brain surgery "based on the treatment that was being sought.” R.115-3 at 239.
.This quote actually originates in Eddy v. Colonial Life Ins. Co. of Am., 919 F.2d 747 (D.C.Cir.1990), and is then excerpted in Ken-seth. Kenseth, 610 F.3d at 467. In Eddy, the plaintiff learned that his employer was cancel-ling its group health insurance coverage just days before he was to undergo exploratory surgery. The plaintiff called his health insurance company, explained the situation, and asked whether he could "continue” his group, employment-based coverage. The insurer told Eddy he could not, but never mentioned the option of converting to individual coverage. Given the facts in Eddy, the court held it was a breach of fiduciary duty for the insurer not to disclose to Eddy that he could convert his policy, stating: "Regardless of the precision of his questions, once a beneficiary makes known his predicament, the fiduciary is under a duty to communicate ... all material facts in connection with the transaction which the trustee knows or should know. 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.” Id. at 751.
. The court is correct that the documents the defendants provided did not comply with the technical requirements of ERISA. Opinion at 659. But the enrollment packet Susan received upon enrolling in the Concert health insurance plan clearly explained all of the relevant provisions in simple, straightforward terms. And even with this knowledge, Susan chose the less expensive, and more limited, insurance plan.
. James testified that after Susan began receiving bills from Rush, he attempted to determine the network status of the Rush providers on-line but was unable to determine whether they were in-network or not. James, however, also testified that he was "not very computer literate,” R. 115-3 at 131, and the record included simple step-by-step instructions with screen shots showing the simplicity of determining provider network status online, confirming James's self-assessment. R.259-5 at 10-12.
. Because the defendants did not have a fiduciary duty to inform James that Rush was out-of-network, the breach of fiduciary duty claim cannot succeed. But even if James could succeed on Susan's estate's breach of fiduciary duty claim, whether monetary payments (which CIGNA Corp. v. Amara, - U.S. -, 131 S.Ct. 1866, 1880, 179 L.Ed.2d 843 (2011), held could be an appropriate equitable remedy), are appropriate in this case is questionable. See generally Kenseth v. Dean Health Plan, Inc., 722 F.3d 869, 892 (7th Cir.2013) (Manion, J., concurring).
. I also agree with Judge Easterbrook’s second suggestion that the majority's approach can make participants worse off, and I join that portion of his dissent. Easterbrook, J., concurring in part, dissenting in part, at 677-78.