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.
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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.
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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.
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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.
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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
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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.
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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
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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.
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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.
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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.
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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.
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