Desrosiers v. Hartford Life & Accident Insurance

United States Court of Appeals
For the First Circuit

No. 06-2609

SHERYL SERREZE DESROSIERS,

Plaintiff, Appellant,

v.

HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, Senior U.S. District Judge]

Before

Boudin, Chief Judge,

Selya, Senior Circuit Judge,

and Howard, Circuit Judge.

Jordan M. Lewis, with whom Siegel, Brill, Greupner, Duffy &
Foster, P.A., Christopher M. Lefebvre, Law Offices of Claude F.
Lefebvre & Sons, and S. Carolina Africano were on brief, for
appellant.
Mark A. Pogue, with whom Edwards Angell Palmer & Dodge LLP was
on brief, for appellee.

February 14, 2008
 HOWARD, Circuit Judge. Sheryl Serreze Desrosiers appeals

from two adverse summary judgment rulings which together upheld

the denial of her claim for long-term disability benefits by

Hartford Life & Accident Insurance Co. ("Hartford").1 The district

court first ruled that Desrosiers's common law claims2 were

preempted by ERISA. After allowing Desrosiers to amend her

complaint to proceed under ERISA, the court upheld Hartford's

determination that Desrosiers was not "totally disabled" within the

meaning of the disability insurance policy. We affirm.

I. FACTUAL BACKGROUND

A. The Plan

Appellant, an attorney, began working at the United

States Trustee Program in 1992. She became Assistant United States

Trustee in the Program's Rhode Island office in 1995. As an

employee of the Department of Justice, Desrosiers was eligible to

enroll in the Federal Employee Group Long Term Disability Plan

("the Plan"), which is sponsored by the Department of Justice

Recreation Association ("DJRA"). Plan benefits are paid by an

insurance policy issued by Hartford, which also administers the

Plan. To receive benefits pursuant to the policy, a claimant must

1
Desrosiers v. Hartford Life & Acc. Ins. Co., 456 F. Supp. 2d 325
(D.R.I. 2006); Desrosiers v. Hartford Life & Acc. Ins. Co., 354 F.
Supp. 2d 119 (D.R.I. 2005).
2
Desrosiers originally filed suit in Providence County (R.I.)
Superior Court. Hartford removed the case to district court based
on diversity jurisdiction. She asserted state law breach of
contract and bad faith settlement claims.

-2-
demonstrate "total disability," which is defined in relevant part

as "being prevented from performing the essential duties of your

occupation" as a result of accidental bodily injury, sickness, or

mental illness.

B. The Claim3

Desrosiers's claim for disability benefits resulted from

three separate incidents in 1999. In April, she was struck in the

head by a car door, and subsequently complained of resultant

headaches, dizziness and difficulty with left eye vision. In May,

Desrosiers was injured when she fell off a swing.4 She was treated

by a neurologist about a month later for persistent headaches,

nausea and dizziness. She was diagnosed with post-traumatic

migraines. Desrosiers returned to work after the second injury5,

but was injured again in December, when she fell down stairs at

home. She suffered a cut on her head that required stitches and

was admitted to the hospital for five days. She subsequently

suffered from a host of maladies, including partial vision loss in

her left eye, and weakness or paralysis in her right leg.

3
As Desrosiers's appeal is aimed at the procedures followed by
Hartford and by the district court, we offer only a brief summary
of her claimed injuries.
4
In her application for benefits, Desrosiers wrote "fell off swing;
broken nose." In an affidavit submitted to the district court she
stated she "fractured [her] skull."
5
Desrosiers reported on her benefit application that she worked
part-time through August 1999, then full time until the December
accident.

-3-
Desrosiers was diagnosed with a sprained back and neck and was

discharged with a walker. She continued to have headaches,

dizziness and weakness in her right leg, as well as various

cognitive problems, including forgetfulness, sleep issues and

difficulty concentrating. While an MRI and spinal CT scan produced

normal results, a brain MRI showed "slight hyperintensity of the

left optic nerve."

Desrosiers did not return to work after the third

accident. She submitted her disability insurance claim to Hartford

on December 30, 1999. Desrosiers attempted to return to part-time

work in June 2000, but stopped two weeks later on the advice of her

doctor. During the period between Desrosiers's application and her

cessation of work, she submitted medical information to Hartford,

which in turn supplied the information to its own internal medical

personnel. Hartford denied Desrosiers's claim in August 2000.

Desrosiers pursued an internal appeal, in support of which she

supplied additional medical information. Hartford denied the

appeal in May 2001.

C. District Court Proceedings6

Desrosiers filed suit in Rhode Island Superior Court in

November 2002. In January 2003, Hartford removed the action to

federal court on diversity grounds. Hartford amended its answer in

6
As the procedure followed by the district court is, in part, the
basis for Desrosiers's appeal, we detail the travel of the case
separately.

-4-
July 2003 to assert that Desrosiers's claims fell within ERISA's

ambit.7 In February 2004, Hartford filed its first motion for

summary judgment, asserting ERISA preemption of Desrosiers's state

law claims. Hartford's motion was supported by an affidavit from

DJRA President Arthur C. Smith III. Approximately one week later,

Hartford moved to stay discovery pending resolution of its summary

judgment motion. Desrosiers did not object to the stay, and the

motion was granted. She filed her objection to Hartford's summary

judgment motion in March. In April, Hartford filed a reply to the

objection, which included a legal argument only briefly mentioned

in its original motion, as well as a supplemental affidavit from

Smith, which contained facts not in his original affidavit. In

August, the district court conducted a hearing on the motion. In

January 2005, the district court granted Hartford's ERISA-based

motion, dismissed Desrosiers's state law claims, and allowed her to

file an amended complaint asserting ERISA claims. Desrosiers, 354

F. Supp. 2d at 129.

Following a period of discovery, the parties filed cross-

motions for summary judgment regarding Hartford's denial of

benefits. In October 2006, the district court granted Hartford's

motion and denied Desrosiers's. This appeal followed.

7
The gist of the dispute was whether the Plan was an "employee
welfare benefit plan," as defined by ERISA, 29 U.S.C. § 1002.
Desrosiers, 354 F. Supp. 2d at 123.

-5-
 II. DISCUSSION

A. The First Summary Judgment Motion

Desrosiers's first argument on appeal is that the

district court committed reversible error in its handling of the

first summary judgment motion when it improperly relied on "new"

facts contained in the affidavit submitted with Hartford's reply.

It is important to note that this argument is based entirely on the

district court's reliance on the second Smith affidavit, rather

than a challenge to the result reached after the allegedly improper

reliance. In other words, Desrosiers implicitly concedes that if

the district court did not err in relying on the second Smith

affidavit, then its decision to treat her complaint as an ERISA

matter must be affirmed. We review the district court's

consideration of evidence on summary judgment for abuse of

discretion. Hoffman v. Applicators Sales & Service, Inc., 439 F.3d

9, 13 (1st Cir. 2006). We will not set aside the decision without

strong evidence that the district court "indulged in a serious

lapse in judgment." Id. at 14 (citation and quotations omitted).

In support of her argument, Desrosiers cites a host of

cases which stand for the proposition that a party seeking summary

judgment may not add new facts or legal arguments in a reply.

Hartford does not dispute this general premise. Instead, Hartford

argues that Desrosiers waived the argument by not rasing it in the

-6-
district court.8

Desrosiers ostensibly argues that she was under no

obligation to bring the issue to the court's attention. She

contends that the "no new facts" rule is self-executing, and that

the district court should therefore have ignored the second

affidavit on its own initiative. To the contrary, however, we have

consistently required some affirmative action from the aggrieved

litigant to preserve such an argument. In Davis v. Sears, Roebuck

& Co., 708 F.2d 862 (1st Cir. 1983), we held that if a party does

not move to strike an inadmissible affidavit, "any objections to

its consideration are deemed to have been waived and it may

properly be considered by the court when ruling on the motion."

Id. at 864. To be sure, we do not always require a written motion

to strike, as we did in Davis. Nevertheless, some action is

required. Our approach was summed up in Perez v. Volvo Car Corp.,

247 F.3d 303 (1st Cir. 2001):

We believe that what is required to preserve a
party's rights vis-á-vis an allegedly
deficient affidavit is for the dissatisfied
party to (a) apprise the trial court, in a
conspicuous manner and in a timely fashion,
that she considers the affidavit defective;
and (b) spell out the nature of the ostensible
defects clearly and distinctly. Whether the
dissatisfied party fulfills these requirements
by means of a motion to strike or in some
substantially equivalent way (say, by an
objection, or as here, in a legal memorandum .
. .) is of little moment.

8
Hartford also asserts that even if the argument is preserved, the
affidavit was not improper. We do not reach the second argument.

-7-
Id. at 314.

Here, Desrosiers had ample opportunity to object to

Hartford's reply and accompanying affidavit, which were filed

April 2, 2004. Oral argument took place almost exactly four months

later, on August 3, 2004. Desrosiers took no action during that

time. Nor did she act following oral argument, after which more

than five months passed before the district court issued its ruling

in January 2005. During that accumulated nine months, Desrosiers

might have, for example, moved to strike the second affidavit or

the reply in its entirety, filed a motion to lift the existing

discovery stay, invoked Rule 56(f) to seek additional discovery, or

moved for leave to file a sur-reply containing a supplemental

affidavit of her own. In the absence of some form of objection,

the district court was not required to ignore the second affidavit

sua sponte.

Alternatively, in her reply brief before this court,

Desrosiers for the first time points to statements made by her

counsel during the summary judgment hearing which purport to

register an objection to the second affidavit. We disagree that

sufficient objection was made. During the hearing, Desrosiers's

counsel bemoaned the additional information in the second

affidavit; when the district court asked whether he was "requesting

discovery now," he replied, "Well, we would very much like an

opportunity here in Court or through deposition to conduct inquiry

of Mr. Smith." This statement was both the first and last time

-8-
that Desrosiers raised the issue in the district court between

April 2, 2004 (when the reply was filed) and January 27, 2005 (when

Hartford's motion was granted). We disagree with Desrosiers's

assertion that this lone comment constituted a sufficient objection

to the affidavit. In our view, this falls far short of the

"seasonable, strenuous and specific" oral objection we have, in the

past, required to preserve the issue. See Perez, 247 F.3d at 315

(noting that an objection was preserved where the complaining party

pointed "specifically to critical portions of the affidavit on the

ground that those excerpts violated Federal Rule of Civil Procedure

56(e)" and thus "straightforwardly brought the claimed shortcomings

in the affidavit to the district court's (and the plaintiff's)

attention in a timeous manner"). While we do not suggest any

nefarious purpose in this case, reversing a summary judgment in the

absence of a sufficient objection to an allegedly improper

affidavit runs the risk of allowing parties to "'play dog in the

manger, making no response to a movant's affidavits, with the

chances of both . . . defeating the motion and, if unsuccessful, of

later setting it aside.'" Id. at 314-15 (quoting Lacey v. Lumber

Mutual Fire Ins. Co., 554 F.2d 1204, 1205 (1st Cir. 1977)).

Against this factual and legal backdrop, the district

court's reliance on the second affidavit was not an abuse of

discretion, and we thus affirm the first summary judgment ruling,

finding ERISA preemption.

-9-
B. The Second Summary Judgment Motion

Following the district court's first ruling and a period

of discovery, the parties filed cross-motions for summary judgment

on Hartford's decision to deny coverage. We review the summary

judgment ruling de novo, Kansky v. Coca-Cola Bottling Co. of New

England, 492 F.3d 54, 57 (1st Cir. 2007), and Hartford's

determination under an abuse of discretion standard.9 Under this

deferential review, the decision is upheld as long as it is

"reasoned and supported by substantial evidence." Wright v. R.R.

Donnelley & Sons Co. Group Benefits Plan, 402 F.3d 67, 74 (1st Cir.

2005). More specifically, we explained in Wright that evidence is

"substantial" when it is "reasonably sufficient to support a

conclusion." Id.

Desrosiers asserts two specific instances in which

9
A divided panel of this court recently addressed the question of
the appropriate standard of review in cases where, as here, the
insurance company both makes the eligibility determination and pays
the benefits. See Denmark v. Liberty Life Assurance Co., 481 F.3d
16 (1st Cir. 2007). There, two members of this court recommended
a re-examination of the standard of review where such so-called
"structural conflicts of interest" are present. Although a
petition for en banc review is pending, abuse of discretion remains
the standard of review applied in this circuit. See Gillis v. SPX
Corp. Individual Account Retirement Plan, 511 F.3d 58 (1st Cir.
2007). We note that the Supreme Court has granted certiorari on
this issue Glenn v. Metropolitan Life Ins. Co., 461 F.3d 660 (6th
Cir. 2006), cert. granted, 2008 WL 161473, 76 U.S.L.W. 3391 (Jan.
18, 2008) (No. 06-923). However, given the nature of Desrosiers's
appellate arguments, our result would be the same under any
standard of review.

-10-
Hartford allegedly abused its discretion.10 First, she claims that

Hartford violated its own internal claims procedures when it failed

to obtain Desrosiers's job description prior to issuing its benefit

denial. Such failure is critical, Desrosiers claims, because the

policy's definition of "disability" is expressed in terms of the

claimant's ability to "perform the essential duties" of her

occupation. She argues that Hartford's alleged procedural

transgression alone constitutes an abuse of discretion warranting

reversal. We need not, however, decide whether a procedural

failure such as alleged here would, standing alone, constitute an

abuse of discretion, as the record demonstrates that Hartford did,

in fact, list Desrosiers's job description as part of the

information it considered in making its final decision. While

Desrosiers accurately points out that Hartford did not receive the

job description until it was considering her appeal, as opposed to

during the pendency of the original claim, we do not find this

timing issue dispositive. We faced a similar situation in Wright,

where we rejected a claimant's argument that Hartford's failure to

consider his job description until the appeal process constituted

an abuse of discretion. Wright, 402 F.3d at 77-78.

10
Not unlike her argument with respect to the district court's
handling of the first summary judgment motion, Desrosiers seeks
reversal of the second summary judgment order because of the
process Hartford followed in handling her claims, i.e., the failure
to use a job description and the requirement of objective evidence.
This approach implicitly concedes defeat if we find that Hartford's
alleged procedural flaws do not require reversal, as Desrosiers
posits no argument that Hartford's decision was substantively
flawed.

-11-
 Desrosiers's second argument fares no better. She

asserts that Hartford impermissibly insisted that she provide

"objective evidence" to support her disability claim. In Boardman

v. Prudential Ins. Co. of America, 337 F.3d 9 (1st Cir. 2003), we

found it impermissible to require objective evidence to support

claims based on medical conditions that do not lend themselves to

objective verification, such as fibromyalgia. Id. at 17. But we

also made clear that it is permissible to require objective support

that a claimant is unable to work as a result of such conditions.

Id. Here, although Hartford's claim denials made reference to a

lack of objective findings, it did so in conjunction with

particular diagnoses -- e.g., lumbar disk herniation -– which do

lend themselves to objective verification. To the extent Hartford

otherwise referred to objective evidence, it did so in the context

of Desrosiers's claim that she was unable to work. As Hartford did

not improperly rely on a lack of objective evidence, we do not find

that it abused its discretion when it denied Desrosiers's claim.

Affirmed.

-12-