Estate of Bratton v. National Union Fire Insurance Co. of Pittsburgh, Pa

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 98-60639

Estate of LARRY M BRATTON,
Joann M Bratton, executrix

Plaintiff - Appellee,

VERSUS

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA; AIG LIFE
COMPANIES; ITT THOMPSON INDUSTRIES INC; ITT GROUP ACCIDENT
INSURANCE PROGRAM

Defendants - Appellants.

Appeal from the United States District Court
For the Northern District of Mississippi
June 20, 2000

Before JONES, BARKSDALE and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

The plaintiff, the Estate of Larry Bratton, through JoAnn

Bratton, Executrix, brought this suit under § 502(a)(1)(B) and §

502(a)(3) of the Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § 1132(a)(1)(B) and (a)(3), to recover benefits

allegedly due under an optional voluntary group accident disability

insurance policy offered to salaried employees of ITT Thompson

1
Industries, Inc. (“ITT Thompson”) and underwritten and administered

by a health insurer, National Union Fire Insurance Company of

Pittsburgh, Pennsylvania (“NUFI”).1 Mr. Bratton was employed by ITT

Thompson in Mississippi from February 1971 to August 20, 1976.

Shortly after ITT Thompson terminated Mr. Bratton’s employment, he

was severely injured in an automobile accident on August 21, 1976.

As a result, Mr. Bratton filed claims for and recovered benefits

under other optional plans in which he had properly enrolled as an

ITT Thompson employee, including a long-term disability benefit

program underwritten by Travelers Insurance Company and an

accidental death and dismemberment coverage provided by the

Equitable Life Assurance Society. On January 22, 1996, over

nineteen years after his August 21, 1976 accident, Mr. Bratton

caused a notice of claim to be submitted to NUFI for disability

benefits under the optional accident disability plan, outside the

time limits set in the policy, and NUFI therefore denied his claim.2

1
The administrative record reflects that NUFI issued the
master policy to International Telephone and Telegraph Corporation,
et. al. (“ITT Corp.”). It is undisputed that ITT Thompson
employees were covered and offered optional coverage under the NUFI
policy.
2
On January 19, 1996, Mr. Bratton wrote a letter to Mr.
Richard Petrocelli, Director of Benefits, ITT Automotive, Inc., at
Auburn Hills, Michigan, asserting that when his accident occurred
on August 21, 1976 he was employed by ITT Thompson, he was enrolled
in the NUFI optional 24-hour accident coverage, and therefore he
was entitled to benefits under that policy. He stated that during
the latter part of 1976, when he inquired by phone of an ITT
personnel employee about benefits for loss of use of feet under the
dismemberment coverage, he was told that none were available unless
both feet had been severed, and that he was not informed of any

2
 During a bench trial, the district court, over defendants’

objections, allowed the Estate of Larry Bratton to introduce

evidence extraneous to the administrative record, including

testimony from JoAnn M. Bratton, the widow of Mr. Bratton and

Executrix of his estate, regarding the merits of the claim, such as

her conversations with Mr. Bratton prior to his accident about their

agreement that he should enroll for the coverage in question, her

presence during his telephone conversation with an ITT Thompson or

International Telephone and Telegraph Corporation, et. al. (“ITT

Corp.”) employee about dismemberment coverage after the accident,

Mr. Bratton’s statements to her following the telephone

conversation, and her calculations and inferences that his final pay

check stub showed the deduction of an amount for group insurance

that included premiums for the disputed coverage. Rendering

other coverage that might become available. On January 22, 1996,
Mr. Bratton’s attorney wrote to Mr. Petrocelli, alleging
essentially the same facts and asserting a claim for disability
benefits under the NUFI policy. The agent for the plan
administrator, NUFI, received Mr. Bratton’s claim indirectly from
ITT, along with all of Mr. Bratton’s enrollment cards in ITT’s
possession, and data from Mr. Bratton’s attorney. The
administrative record contains no enrollment forms signed by Mr.
Bratton for the type of coverage in question, and the data on Mr.
Bratton’s last pay check stub pertaining to his payroll deductions
for optional coverages is ambiguous. On July 24, 1996, the acting
plan administrator, after gathering evidence and evaluating the
claim, denied it for the following reasons: “[O]n August 21, 1976,
Mr. Bratton suffered an injury in a motor vehicle crash. However,
no claim for benefits had been filed prior to January 22, 1996. We
had this matter reviewed by local counsel, who advises that Mr.
Bratton’s claim for benefits is barred by the Statutes of
Limitation. Therefore, no benefits are payable under this policy.”

3
judgment for the Estate, the district court rested its decision on

an equitable estoppel theory crucially based on findings of facts

inferred from the trial evidence extrinsic to the administrative

record. The district court inferred from JoAnn Bratton’s

calculations and its own based on Mr. Bratton’s final pay check stub

and cost of insurance data in ITT group insurance booklets

introduced by the plaintiff that ITT Thompson had regularly deducted

from Mr. Bratton’s pay checks amounts corresponding to the cost of

the optional accident disability insurance for Mr. Bratton with

NUFI. The district court further found that, following the

termination of Mr. Bratton’s employment by ITT and his accident on

August 21, 1976, he was led to believe during a telephone

conversation, by an ITT personnel employee, whom the court inferred

was acting as an ERISA fiduciary with respect to the group insurance

in question, that his disability was not covered under the optional

accident disability policy because he did not suffer severance of

a limb.3 For reasons stated in its memorandum opinion, the district

3
The group accident plans available to ITT employees with NUFI
provided for two types of coverages, (1) “business travel accident”
coverage afforded to salaried employees of ITT while on business of
ITT, and (2) optional “24-hour accident protection” covering
accidents whether on or off the job, including accidents occurring
in the home or while traveling. Both plans provided dismemberment
coverage for actual severance of limbs. The entire cost of
“business travel accident” coverage was borne by ITT. The optional
“24-hour” coverage required that the employee complete and file an
enrollment form and pay premiums through payroll deductions.
Because Mr. Bratton was not a salaried employee on business of ITT
at the time of his accident, he was not entitled to “business
travel accident” coverage.

4
court rendered its final judgment ordering that the plaintiff

recover of the defendants $258,394.26 ($51,000 in principal plus

prejudgment interest from August 21, 1977) with interest and costs.

The defendants appealed.

I. STANDARDS AND PROCEDURES OF JUDICIAL REVIEW

OF ERISA PLAN ADMINISTRATOR’S DENIAL OF BENEFITS CLAIMS

ERISA provides federal courts with jurisdiction to review

benefit determinations by fiduciaries or plan administrators. See

29 U.S.C. § 1132(a)(1)(B). Consistent with established principles

of trust law, a denial of benefits challenged under § 1132(a)(1)(B)

is to be reviewed under a de novo standard unless the benefit plan

gives the administrator or fiduciary discretionary authority to

determine eligibility for benefits or to construe the terms of the

plan. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113-

15 (1989). An administrator, fiduciary or trustee is a fiduciary

to the extent that he exercises any discretionary authority or

control. See id. at 113 (citing 29 U.S.C. § 1002(21)(A)(i)). If

a benefit plan gives discretion to an administrator or fiduciary

who is operating under a conflict of interest, that conflict must

be weighed as a factor in determining whether there is an abuse of

discretion. See id. at 115.4

4
When an administrator has discretionary authority with
respect to the decision at issue, the standard of review should be
one of abuse of discretion. See Vega v. National Life Ins.
Services, 188 F.3d 287, 295 (5th Cir. 1999) (en banc). The
existence of a conflict is a factor to be considered in determining

5
 The plan administrator has the obligation to identify the

evidence in the administrative record and the claimant must be

afforded a reasonable opportunity to contest whether that record is

complete. See Vega v. National Life Ins. Services, 188 F.3d 287,

295, 299 (5th Cir. 1999) (en banc) (citing Barhan v. Ry-Ron Inc.,

121 F.3d 198, 201-02 (5th Cir. 1997)). Once the administrative

record has been determined, the district court may not stray from

it but for certain limited exceptions, such as the admission of

evidence related to how an administrator has interpreted terms of

the plan in other instances, and evidence, including expert

opinion, that assists the district court in understanding the

medical terminology or practice related to a claim. See id. at

299.5 Thus, the administrative record consists of relevant

information made available to the administrator prior to the

whether the administrator abused its discretion in denying a claim.
See id. at 297. The greater the evidence of conflict on the part
of the administrator, the less deferential the abuse of discretion
standard will be. See id. at 299. Under this “sliding scale”
standard, the court applies the abuse of discretion standard,
giving less deference to the administrator in proportion to the
administrator’s apparent conflict. See id. at 296.
5
Further, as a safeguard against possible abuse or mistake,
the claimant’s lawyer may add additional evidence to the
administrative record simply by submitting it to the administrator
in a manner that gives the administrator a fair opportunity to
consider it. See Vega, 188 F.3d at 300. If the claimant submits
additional information to the administrator, and requests the
administrator to reconsider its decision, that additional
information should be treated as part of the administrative record.
See id. at 300 (citing Wildbur v. ARCO Chem. Co., 974 F.2d 631,
634-35 (5th Cir. 1992)).

6
complainant’s filing of a lawsuit and in a manner that gives the

administrator a fair opportunity to consider it. See id. If an

administrator has made a decision denying benefits when the record

does not support such a denial, the court may, upon finding an

abuse of discretion on the administrator’s part, award the amount

due on the claim and attorney’s fees. See id. at 302 (citing

Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011, 1014 (5th

Cir. 1992)).

II. DISCUSSION

Our review of the administrative record reveals that NUFI

issued the master group optional voluntary accident policy to ITT

Corp; that the policy designated NUFI as “the Company” and ITT

Corp. as “the Holder”; and that neither ITT Corp., nor ITT

Thompson, nor any of their affiliates or employees had or exercised

any authority under the policy to act as an administrator or a

fiduciary.6 Further, the policy was administered solely by NUFI

and its affiliate, AIG Life Companies, and, under the terms of the

6
Under ERISA § 3(21)(A), a person is a fiduciary with respect
to a plan to the extent that person (1) exercises any discretionary
authority or discretionary control respecting management of such
plan or exercises any authority or control respecting management or
disposition of its assets; (2) renders investment advice for a fee
or other compensation, direct or indirect, with respect to any
monies or other property of such plan, or has any authority or
responsibility to do so; or (3) has any discretionary authority or
discretionary responsibility in the administration of such plan.
See 29 U.S.C. § 1002(21)(A) (1999). The administrative record does
not indicate that any ITT company or employee had or exercised any
such authority or function.

7
policy and ERISA, the insurer, NUFI, was the designated plan

administrator.7 Consequently, we find no basis in law or the

administrative record for the district court’s conclusion that the

ITT employee who discussed dismemberment coverage with Mr. Bratton

by telephone was acting as a fiduciary with respect to the NUFI

policy.8

For this reason, and because the district court strayed far

outside the administrative record by conducting its own trial de

novo on the merits of the claim, we can give no deference to its

7
Under ERISA § 3(16)(A) the term administrator means the
person specifically so designated by the terms of the instrument
under which the plan is operated. See 29 U.S.C. § 1002 (16)(A).
The NUFI policy, in effect, designated the insurer the plan
administrator by requiring claimants to file written notices of
claims and proofs of loss with the insurer, requiring insurer to
provide claimants with proof of loss forms, granting the insurer
the right and opportunity to have physical examinations or
autopsies performed on the subject of the claim, and vesting the
insurer with exclusive authority to pay or deny claims. See Vega
v. National Life Ins. Services, 145 F.3d 673, 677, n.24 (5th Cir.
1998), abrogated on other grounds but implicitly approved on this
point, 188 F.3d 287, 295 (5th Cir. 1999)(en banc).
8
In UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 379
(1999), the Supreme Court held that a state law or agency rule
allowing a policyholder-employer to be deemed an agent of the
insurer-plan administrator in administering group insurance
policies “relate[s] to” ERISA plans and, thus is preempted by
ERISA. The Court explained that “deeming the policyholder-employer
the agent of the insurer would have a marked effect on plan
administration. It would ‘forc[e] the employer, as plan
administrator, to assume a role, with attendant legal duties and
consequences, that it has not undertaken voluntarily’; it would
affect ‘not merely the plan's bookkeeping obligations regarding to
whom benefits checks must be sent, but [would] also regulat[e] the
basic services that a plan may or must provide to its participants
and beneficiaries.’” Id. (citing the United States’ amicus curiae
brief at 27).

8
factual findings or application of equitable estoppel. Instead, we

proceed to review the plan administrator’s decision based upon the

administrative record in accordance with Vega and the authorities

upon which it relies.

The denial of benefits to Mr. Bratton by the NUFI plan

administrator challenged by the plaintiff under § 1132(a)(1)(B)

must be reviewed under a de novo standard because the NUFI optional

voluntary accident disability policy does not give the

administrator discretionary authority to determine eligibility for

benefits or to construe the terms of the plan. See Bruch, 489 U.S.

at 115. As the Supreme Court indicated in Bruch, the court

therefore should review the claim “as it would...any other contract

claim — by looking to the terms of the plan and other

manifestations of the parties’ intent.” Id. at 112-13 (citing

Connery v. Phoenix Steel Corp., 249 A.2d 866 (Del. 1969); Atlantic

Steel Co. v. Kitchens, 187 S.E.2d 824 (Ga. 1972); Sigman v. Rudolph

Wurlitzer Co., 11 N.E.2d 878 (Ohio Ct. App. 1937)). For factual

determinations under ERISA plans, however, we have held that

federal courts owe due deference to an administrator’s findings

and, for their review, the abuse of discretion standard is

appropriate. See Southern Farm Bureau Life Ins. Co. v. Moore, 993

F.2d 98, 101 (5th Cir. 1993); Pierre v. Connecticut Gen. Life Ins.

Co., 932 F.2d 1552, 1562 (5th Cir. 1991).

Applying the foregoing standards to the administrative record,

9
we conclude that the administrator’s denial of the plaintiff’s

claim should be upheld as being consistent with a correct

interpretation of the insurance contract and a reasonable

determination of facts based on the administrative record.

Although the administrator may have misspoken in stating that the

claim was barred by the “Statutes of Limitation” rather than the

time limits set in the policy, her finding that “no claim for

benefits had been filed prior to January 22, 1996,” over nineteen

years after Mr. Bratton’s August 21, 1976 accident, shows that her

decision was solidly based upon the record and consistent with a

correct reading of the policy provisions for filing a notice of

claim and a proof of loss.

ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), provides a

contract based cause of action to participants and beneficiaries to

recover benefits, enforce rights, or clarify rights to future

benefits, under the terms of an employee benefit plan. In

connection with this statutory recognition of contractual benefits

rights, Section 503 of ERISA, 29 U.S.C. § 1133, in accordance with

the regulations of the Secretary of Labor, sets certain minimum

requirements for the claims procedures that plans are required to

follow in processing benefits claims brought by participants and

beneficiaries. See Tolle v. Carroll Touch, Inc., 23 F.3d 174, 180

(7th Cir. 1994).

Pursuant thereto, the Secretary has promulgated regulations to

10
provide minimum requirements for employee benefit plan procedures

pertaining to claims by participants and beneficiaries (claimants)

for plan benefits, consideration of such claims, and review of

claim denials. See 29 C.F.R. § 2560-503-1 (1999). The regulations

require that every employee benefit plan shall establish and

maintain reasonable claims procedures. See 29 C.F.R. § 2560-503-

1(b) (1999). A reasonable claims procedure must, inter alia, be

described in the summary plan description, not be administered or

contain any provision so as to unduly inhibit or hamper the filing

or processing of claims, and provide for a procedure for informing

participants in a timely fashion of the time periods for decisions

on claims made and the time periods for making appeals and

receiving decisions thereon. Id. When benefits under a plan are

provided or administered by an insurance company, the claims

procedure pertaining to such benefits may provide for filing of a

claim for benefits with and notice of decision by such company.

See 29 C.F.R. § 2560-503-1(c) (1999).

A claim is filed when the requirements of a reasonable claim

filing procedure of a plan have been met. See 29 C.F.R. § 2560-

503-1(d) (1999). If a reasonable procedure for filing claims has

not been established by the plan, a claim shall be deemed filed

when a written or oral communication is made by the claimant or the

claimant’s authorized representative reasonably calculated, in the

case of a plan provided or administered by an insurance company, to

11
bring the claim to the attention of the person or organizational

unit which handles claims for benefits under the plan or any

officer of the insurance company, insurance service or similar

organization. See 29 C.F.R. § 2560-503-1(d)&(d)(3) (1999).

The NUFI policy sets forth a reasonable claims procedure which

meets the minimum requirements of the Secretary’s regulations. The

policy’s “uniform provisions,” in pertinent part, state:

1. Notice of Claim: Written notice of claim must be given
to the Company within twenty days after the occurrence or
commencement of any loss covered by the policy, or as
soon thereafter as it reasonably possible. Notice given
by or on behalf of the claimant to the National Union
Fire Insurance Company of Pittsburgh, Pa., or to any
authorized agent of the Company, with information
sufficient to identify the Insured Person or the Insured
Family Member shall be deemed notice to the Company.
2. Claim Forms: The Company upon receipt of a notice of
claim, will furnish to the claimant such forms as are
usually furnished by it for filing proofs of loss. If
such forms are not furnished within fifteen days after
the giving of such notice the claimant shall be deemed to
have complied with the requirements of the policy as to
proof of loss upon submitting, within the time fixed in
the policy for filing proofs of loss, written proof
covering the occurrence, the character and the extent of
the loss for which claim is made.
3. Proof of Loss: Written proof of loss must be furnished
to the Company at its said office in case of claim for
loss for which this policy provides any periodic payment
contingent upon continuing loss within ninety days after
the termination of the period for which the Company is
liable and in case of claim for any other loss within
ninety days after the date of such loss. Failure to
furnish such proof within the time required shall not
invalidate nor reduce any claim if it was not reasonably
possible to give proof within such time, provided such
proof is furnished as soon as reasonably possible.
* * *
7. Legal Actions: No action at law or in equity shall be
brought to recover on the policy prior to the expiration
of sixty days after written proof of loss has been

12
 furnished in accordance with the requirements of this
policy. No such action shall be brought after the
expiration of three years after the time written proof of
loss is required to be furnished.

The NUFI policy’s optional 24-hour accident coverage provided

a permanent total disability indemnity (not applicable to insured

family members) as follows:

When as the result of injury and commencing within one
year of the date of the accident an injured Person is
totally and permanently disabled and prevented from
engaging in each and every occupation or employment for
compensation of profit for which he is reasonably
qualified by reason of his education, training or
experience, the Company will pay, provided such
disability has continued for a period of twelve
consecutive months and is total, continuous and permanent
at the end of this period, the Principal Sum less any
other amount paid or payable under Accidental Death and
Dismemberment Indemnity as the result of the same
accident.

Assuming that Mr. Bratton was properly enrolled under the NUFI

optional voluntary accident policy on the date of his August 21,

1976 accident, and assuming that commencing within one year of his

accident, he became totally and permanently disabled as defined by

the policy, Mr. Bratton was required to give NUFI timely written

notice of claim and timely written proof of loss. In order to give

notice of claim, Mr. Bratton was required to give written notice to

the company within twenty days after the occurrence or commencement

of any loss governed by the policy or as soon thereafter as

reasonably possible. If Mr. Bratton was properly enrolled for

coverage and was rendered totally and permanently disabled by his

August 21, 1976 accident, his loss would have commenced on the last

13
day of the first year following the accident if it had continued

for one year thereafter. In such case, Mr. Bratton would have been

required to give the company written notice of his claim within

twenty days following the second anniversary of his accident, or as

soon thereafter as reasonably possible. Under the facts assumed,

Mr. Bratton also would have been required to give written proof of

loss to the company at its office within ninety days after the date

of such loss, which at the latest would have been within two years

and ninety days of the accident, unless it was not reasonably

possible to give proof within such time, provided such proof is

furnished as soon as reasonably possible. The uniform provisions

of the plan further stipulate that no action at law or in equity

shall be brought after the expiration of three years after the time

written proof of loss is required to be furnished.

Accordingly, Mr. Bratton failed to file a written notice of

claim with the company within the time allotted by the plan,

because no such notice was filed within two years and twenty days

of the accident. He also failed to file a timely written proof of

loss with the company because no such proof of loss was filed

within two years and ninety days after the accident. Further, no

timely action at law or in equity was brought to recover on the

policy because none was filed prior to the expiration of three

years after the time written proof of loss was required to be

furnished. There is nothing in the administrative record to

14
indicate that it was not reasonably possible for Mr. Bratton to

file the written notice of claim and the written proof of loss

within the times prescribed. Mr. Bratton’s notice of claim and

proof of loss plainly were not timely filed under the express terms

of the NUFI policy.

An insured’s failure to submit timely written notice and proof

of his claim, does not necessarily invalidate his claim to

benefits. A state’s notice-prejudice rule, under which an insurer

must show that it was prejudiced by an insured’s failure to give

timely notice of a claim, may “regulate insurance” within the

meaning of ERISA’s saving clause and, thus, escape preemption by

ERISA. See UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358

(1999).9 Assuming without deciding that Mississippi has adopted

such a notice-prejudice rule, however, we agree with NUFI that the

record in the present case demonstrates that NUFI and AIG were

prejudiced as a matter of law by the extraordinary delay in the

9
In UNUM the Supreme Court examined California’s notice-
prejudice rule, which provides:
‘[A] defense based on an insured’s failure to give timely
notice [of a claim] requires the insurer to prove that it
suffered actual prejudice. Prejudice is not presumed
from delayed notice alone. The insurer must show actual
prejudice, not mere possibility of prejudice.’
UNUM, 526 U.S. at 366-67 (citing Shell Oil Co. v. Winterthur Swiss
Ins. Co., 12 Cal.App.4th 715, 760-61 (1st Dist. 1993)).

15
filing of the claim.10

In the present case, Mr. Bratton did not file a notice of

claim or a proof of loss during a period of over nineteen years

after his accident on August 21, 1976. By the time Mr. Bratton

filed his notice of claim on January 22, 1996, many events had

occurred that severely prejudiced NUFI’s right to properly

determine whether Mr. Bratton had been enrolled in the optional 24-

hour accident disability program on August 21, 1976 and to evaluate

his claim of total and permanent disability as defined by the

policy. Mr. Bratton, who was terminally ill when he filed his

notice of claim on January 22, 1996, died not long afterwards in

1996. Mr. Bratton’s former employer, ITT Thompson, was acquired by

McKechnie Vehicle Components in 1989. The former ITT Thompson

plant at which Mr. Bratton worked in Mississippi was closed in

1995. ITT Industries, the former parent or affiliate corporation

of ITT Thompson, submitted to the plan administrator all benefit

enrollment cards in Mr. Bratton’s personnel file, stating that

there was no enrollment form of any type of coverage for him with

NUFI. McKechnie Vehicle Components reported that the only

documents it had on file related to Mr. Bratton’s health care

10
See Lawler v. Gov’t Employees Ins. Co., 569 So.2d 1151
(Miss. 1990)(arguably adopting or reaffirming a notice-prejudice
rule). See also, Lawler, 569 So.2d at 1154, 1159-60 (Robertson,
J., dissenting)(citing, e.g., Rampy v. State Farm Mutual Automobile
Ins. Co., 278 So.2d 428, 434 (Miss. 1973)); id. at 1164 (Pittman,
J., dissenting); but see Bolivar County Bd. of Supervisors v. Forum
Ins. Co., 779 F.2d 1081, 1085 (5th Cir. 1986).

16
coverage continuation, a different type of coverage provided by an

insurer other than NUFI. The plan administrator’s supervisor of

claims determined that because Mr. Bratton filed his claim over

nineteen years after the accident, the insurer was neither afforded

the opportunity to complete a proper investigation of the claim nor

to complete a proper medical evaluation to determine if Mr. Bratton

was permanently and totally disabled as defined by the policy. The

administrator determined that it could not be inferred as a

reasonable probability from the unitemized $19.04 payroll deduction

for “group insurance” indicated on Mr. Bratton’s final pay check

stub that his regular payroll deductions included $3.00 or more per

month for optional accident disability coverage by NUFI. Mr.

Bratton was compensated for additional days after his actual

termination date, so that his final paycheck included more than the

usual amount of deductions and possibly other termination-related

adjustments. The plaintiff’s attempt to construct after-the-fact

a probable itemization of the final $19.04 deductions was not based

upon reliable cost data as to the various relevant coverages prior

to Mr. Bratton’s termination.

Under the circumstances of this case, we conclude that the

notice of claim was not timely filed and that the insurer was

prejudiced by the claimant’s delay of nearly two decades in

notifying it of the claim. Accordingly, there is warrant in the

administrative record and a valid basis in the insurance contract

17
to justify the plan administrator’s denial of the claim.

We also reject the plaintiff’s argument that the district

court’s judgment can be sustained as a recovery of disability

insurance benefits based on an action under § 502(a)(3) as a remedy

for a breach of a fiduciary’s duty. In Varity Corporation v. Howe,

516 U.S. 489 (1996), the Supreme Court held that § 502(a)(3)

authorized beneficiaries of an employee welfare plan to bring

lawsuits for individualized equitable relief against their

employer/plan administrator for breaches of fiduciary obligations

causing injuries by violations that § 502 does not elsewhere

adequately remedy. In the present case, however, the record is

devoid of evidence that would support a finding that ITT Thompson

or ITT Corp. was a fiduciary with respect to the NUFI group

accident insurance policy or that any ITT company had or exercised

any discretionary authority, control or responsibility in the

administration of the policy. Further, the record does not support

a determination that the ITT employee who advised Mr. Bratton as to

the requirements for dismemberment benefits had or was exercising

fiduciary authority or was guilty of knowingly and significantly

misleading Mr. Bratton as to benefits under the NUFI policy.

Finally, the plaintiff in this purported § 502(a)(3) action is

seeking only disability benefits allegedly due under the NUFI

policy for which § 502(a)(1)(B) affords an adequate remedy. See

Rhorer v. Raytheon Engineers and Constructors, Inc., 181 F.3d 634,

18
639 (5th Cir. 1999); Tolson v. Avondale Indus., Inc., 141 F.3d 604,

610 (5th Cir. 1998). Accordingly, the plaintiff cannot use a §

502(a)(3) Varity action in this case to preserve the district

court’s judgment in its favor.

For the reasons assigned, the judgment of the district court

is reversed, and judgment is rendered in favor of the defendants

against the plaintiff, Estate of Larry M. Bratton, represented

herein by its Executrix, JoAnn M. Bratton, dismissing the

plaintiff’s suit with prejudice.

19