FILED
NOT FOR PUBLICATION APR 04 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CARL JOHN NOECKER, No. 11-55593
Plaintiff - Appellant, D.C. No. 2:09-cv-05922-DMG-SS
v.
MEMORANDUM *
SOUTHERN CALIFORNIA LUMBER
INDUSTRY WELFARE FUND; BROAD
OF TRUSTEES FOR THE SOUTHERN
CALIFORNIA LUMBER INDUSTRY
WELFARE FUND,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted December 7, 2012
Pasadena, California
Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.
Carl John Noecker appeals from a judgment of the United States District
Court for the Central District of California in favor of the Southern California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Lumber Industry Welfare Fund (the “Fund”) and the Fund’s Board of Trustees (the
“Board”). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Noecker participated in the Fund’s multi-employer self-funded medical
indemnity plan (the “Plan”). The Plan is governed by the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1002–1461. Until 2002, the
Plan advanced benefits for medical expenses incurred by a participant pending
recovery from a third party liable for those expenses. In 2002, the Supreme Court
held that the provision of ERISA authorizing plan fiduciaries to bring civil actions to
obtain “appropriate equitable relief” does not authorize employee benefit plans to seek
reimbursement of advanced medical expenses from beneficiaries who recover
damages for those expenses from a third party. Great-West Life & Annuity Ins. Co.
v. Knudson, 534 U.S. 204, 221 (2002). In light of Knudson and the Plan’s previous
difficulties in recovering such advances, the Board amended the Fund’s indemnity
plan in 2002. The Board amended the Exclusion for Third Party Injuries provision to
read:
This Plan does not provide benefits where the care required is for injuries
or illness to you or your eligible dependents caused through the act or
omission of another person, known as a Third Party, and where you are
pursuing or you intend to pursue a claim or lawsuit for damages against
the Third Party.
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The indemnity plan was simultaneously amended to remove the Advance Payment of
Benefits in Cases of Third Party Liability provision and all language subrogating the
Plan to a participant’s claims against third parties.
Noecker was injured in a helicopter crash in 2008 and incurred significant
medical expenses. After receiving Noecker’s medical claims, the Fund sent him a
questionnaire asking, “Have you filed or are you planning to file a claim or lawsuit
against a third party as a result of the injury/illness?” Noecker checked the box
indicating “Yes.” The Fund then denied his claims.
Noecker appealed to the Board, arguing that the exclusion requires that a court
first adjudicate that a third party legally “caused” the accident before benefits can be
denied. The Board disagreed, finding that the exclusion applies whenever the
participant pursues or intends to pursue a claim or lawsuit against a potentially
culpable third party.
Noecker then filed this suit, alleging that the Board abused its discretion in
interpreting the exclusion, that the exclusion as interpreted is unconscionable and
violates public policy, and that the Board breached its fiduciary duties in denying
Noecker’s claims. The district court granted the Fund’s motion for summary
judgment. We affirm.
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1. We review the Board’s denial of benefits for abuse of discretion. Estate of
Shockley v. Alyeska Pipeline Servs. Co., 130 F.3d 403, 405 (9th Cir. 1997). The
district court did not err in finding the Board’s reading of the exclusion reasonable.
The exclusion applies when the claimant is “pursuing or intend[s] to pursue” a claim
against a third party, and thus does not require prior adjudication of that claim before
its application. The Board’s interpretation is consistent with the purpose of the
exclusion, which is to refrain from advancing benefits which might, in light of
Knudson, not be recoverable.
2. We decline Noecker’s invitation to invalidate the exclusion as either
unconscionable or violative of public policy. A contract term is typically invalidated
only if it is both procedurally and substantively unconscionable. Restatement
(Second) of Contracts § 208 (1981). This contract is not procedurally unconscionable.
The Plan is not a contract of adhesion. Rather, it is the product of collective
bargaining between management and labor, each of which were represented on the
Board that adopted the challenged exclusion. In choosing medical coverage, Noecker
had a choice between the indemnity plan at issue and two HMO plans, each of which
do not have the exclusion. The exclusion, which was adopted years before Noecker
became a participant in the Plan, is unambiguous and appears twice in the summary
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plan description. See Peterson v. Am. Life & Health Ins. Co., 48 F.3d 404, 411 (9th
Cir. 1995) (holding that an insurer avoids liability under the “reasonable expectations”
doctrine when there is a clear, plain, unambiguous, and conspicuous exclusion);
Saltarelli v. Bob Baker Grp. Med. Trust, 35 F.3d 382, 386 (9th Cir. 1994). Moreover,
Noecker does not contend that he was unaware of the Board’s removal of the Advance
Payment provision and the subrogation language. Regardless of the wisdom of the
exclusion, for participants pursuing a claim against a third party, Noecker’s attorney
conceded at oral argument that it violates no provision of ERISA, and we are not free
to amend the Plan to our liking. See Peterson, 48 F.3d at 411 (stating that a court may
not mandate the type or scope of coverage under an ERISA plan).
3. The district court also did not err in holding that the Board did not breach
its fiduciary duties by not fully setting out in the questionnaire the consequences of
a decision to pursue third party claims. We assume arguendo that the Board might
abuse its fiduciary duties if it denied coverage solely on the basis of a questionnaire
answer where a participant was unaware of the exclusion at the time he answered the
questionnaire and thereafter timely disavowed claims against a third party in order to
obtain the indemnity plan’s medical benefits. But that is not the case here. Noecker
never has claimed, either in his appeal to the Board or in this litigation, that he was
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unaware of the consequences of pursuing a third party claim. Nor has he ever sought
to abandon his third party claims and withdraw the suit he filed in connection with the
helicopter crash, which counsel informed us at oral argument was eventually settled
for approximately $4,000,000. Thus, Noecker suffered no damages from the design
or use of the questionnaire.
AFFIRMED.
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