# McCluer v. Sun Life Assurance Company of Canada > District Court, S.D. California · November 9, 2021 URL: https://www.frixlaw.com/law-library/cases/10084858 ## Case - **Court:** District Court, S.D. California - **Decided:** November 9, 2021 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10084858 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 MICHELE MCCLUER, Case No.: 21-cv-0008-GPC-WVG 11 Plaintiff, ORDER DENYING PLAINTIFF’S 12 v. MOTION TO AUGMENT THE ADMINISTRATIVE RECORD 13 SUN LIFE ASSURANCE COMPANY OF CANADA, SUN LIFE ASSURANCE 14 COMPANY OF CANADA (U.S); and 15 DOES 1 to 100, 16 Defendants. [ECF No. 20] 17 18 Before the Court is Plaintiff Michele McCluer’s (“Plaintiff”) motion to augment 19 the administrative record and thereby expand the scope of the Court’s de novo review of 20 Defendants’ denial of Accidental Death Benefits from a Group Policy issued by Sun Life 21 Assurance Company of Canada1 (“Defendants” or “Sun Life”), to her now-deceased 22 husband, Neil McCluer (“Decedent” or “Mr. McCluer”). ECF No. 20-4, Pl.’s Mot. at 5.2 23 24 1 Along with Sun Life Assurance Company of Canada, named Defendants include Sun 25 Life’s American company, Sun Life Assurance (U.S.), and Does 1 to 100. 26 2 Unless otherwise indicated, the Court refers to the pagination generated by CM/ECF when it refers to documents in the record. 27 1 Defendants opposed the motion, ECF No. 24, and Plaintiff’ replied, ECF No. 25. For the 2 reasons set forth below, the Court DENIES Plaintiff’s motion without prejudice. 3 Further, the Court finds this motion suitable for disposition without oral argument 4 pursuant to Civil Local Rule 7.1 (d)(1) and VACATES the hearing on this matter. 5 FACTUAL BACKGROUND 6 Neil McCluer (“Decedent”) died tragically and suddenly on the morning of July 7 15, 2019 while on a cruise vacation with his wife and two children. ECF No. 20-4, Pl.’s 8 Mot. at 7. After his death, Mr. McCluer’s wife, Plaintiff Michele McCluer submitted a 9 claim for the life insurance benefits, and the Accidental Death Benefit (“ADB”) pursuant 10 to Mr. McCluer’s life insurance policy employee benefits through his employer, Gemalto, 11 Inc. Id. Defendant Sun Life processed Plaintiff’s claim for Mr. McCluer’s life insurance 12 benefits, and sent a check to Plaintiff for that claim, but requested additional information 13 relating to Mr. McCluer’s autopsy and toxicology reports to evaluate the Accidental 14 Death Benefit claim. ECF No. 27-2 at 154 (Ex. 7).3 Defendants then sent a number of 15 follow-up reminders asking Plaintiff to submit the reports. See ECF No. 27-2 at 160 (Ex. 16 7). After Plaintiff collected the requested documents, she furnished them to Sun Life on 17 March 3, 2020, and informed the benefits analyst responsible for her husband’s claims 18 that she believed Mr. McCluer’s death was caused by an accidental overdose. Pl.’s Mot. 19 at 7; ECF No. 27-2 at 167, 184 (Ex. 8). Defendants ultimately denied Plaintiff’s claim, 20 ECF No. 27-2 at 186 (Ex. 9). Plaintiff’s counsel then initiated the appeal, renewing the 21 claim about Mr. McCluer’s accidental overdose, ECF No. 27-2 at 197 (Ex. 12), and 22 Defendants affirmed the rejection of Plaintiff’s claim on October 6, 2020, ECF No. 27-2 23 at 209 (Ex. 3). In the letter rejecting Plaintiff’s appeal, Sun Life explained that after a 24 25 26 3 For references to Plaintiff’s exhibits, the Court refers to the CM/ECF pagination within ECF No. 27-1 and 27-2, and indicates the exhibit number parenthetically for ease of review across the filings. 27 1 review of Mr. McCluer’s file, and with the opinion of an independent retained 2 toxicologist, “Neil McCluer’s death was not the result of an Accidental Bodily Injury as 3 defined by the Group Policy and benefits are not payable.” ECF No. 27-2 at 212 (Ex. 4 13). 5 PROCEDURAL BACKGROUND 6 Plaintiff first brought this action against Defendants in the San Diego County 7 Superior Court on November 3, 2020. See ECF No 1-4, Pl.’s State Compl. In her 8 Complaint, Plaintiff sued Defendants for damages, and alleged that by denying Plaintiff’s 9 Accidental Death Benefits, Defendants were liable for breach of insurance, breach of the 10 covenant of good faith and fair dealing, and for violations of the Employee Retirement 11 Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq. (“ERISA”), seeking 12 benefits pursuant to section 502(a)(1)(B). Id. at 4-5. 13 On January 4, 2021, Defendants timely removed Plaintiff’s action to federal court 14 pursuant to federal diversity jurisdiction, ECF No. 1 at 1-3, and federal question 15 jurisdiction, id. at 4-7, under 28 U.S.C. §§ 1331 and 1332. In the Notice of Removal, 16 Defendants asserted this Court has jurisdiction over the Plaintiff’s case because the 17 complaint sought to recover benefits due under the Decedent’s employee welfare benefit 18 plan, which is governed by ERISA. ECF No. 1 at 5. For her part, Plaintiff did not 19 contest Defendant’s removal of the action to state court by moving to remand the case 20 under 28 U.S.C. § 1447(c). See Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014). 21 DISCUSSION 22 I. Legal Standard 23 A claim of denial of benefits in an action governed by ERISA “is to be reviewed 24 under a de novo standard unless the benefit plan gives the administrator or fiduciary 25 discretionary authority to determine the eligibility of benefits or to construe the terms of 26 the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Montour v. 27 1 Hartford Life & Acc. Ins. Co., 588 F.3d 623, 629 (9th Cir. 2009). Absent exceptional 2 circumstances, evidence in ERISA cases is limited to the administrative record that was 3 before the claim administrator at the time the claim determination was made. See Opeta 4 v. Northwest Airlines Pension Plan, 484 F.3d 1211, 1217 (9th Cir. 2007) (quoting 5 Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1025 (4th Cir. 1993) (en 6 banc) (“[i]n most cases, where additional evidence is not necessary for adequate review 7 of the benefits decision, the district court should only look at the evidence that was before 8 the claim administrator.”)). 9 In Opeta, the Ninth Circuit looked to the Fourth Circuit’s Quesinberry opinion and 10 its non-exhaustive list of “exceptional circumstances” for guidance on where additional 11 facts could be necessary to the district court’s review. Opeta, 484 F.3d at 1217. The list 12 includes claims that require consideration of complex medical questions or issues 13 regarding the credibility of medical experts; the availability of very limited administrative 14 review procedures with little or no evidentiary record; the necessity of evidence regarding 15 interpretation of the terms of the plan rather than specific historical fact; and 16 circumstances in which there is additional evidence that the claimant could not have 17 presented in the administrative process. See id. (citing Quesinberry, 987 F.2d at 1027). 18 A district court should exercise its discretion to consider evidence outside the 19 administrative record “only when circumstances clearly establish that additional evidence 20 is necessary to conduct an adequate de novo review of the benefit decision.” Mongeluzo 21 v. Baxter Travenol Long Term Disability Ben. Plan, 46 F.3d 938, 944 (9th Cir. 1995) 22 (quoting Quesinberry, 987 F.2d at 1025). Such a determination by the district court is 23 reviewed for an abuse of discretion. Opeta, 484 F.3d at 1216 (citing Dishman v. UNUM 24 Life Ins. Co. of Am., 269 F.3d 974, 985 (9th Cir. 2001)). 25 / / / 26 / / / 27 1 II. Analysis 2 Relying on Mongeluzo, Plaintiff contends that Defendants misconstrued the critical 3 policy term “Accidental Bodily Injury” in denying Plaintiff’s claim for Mr. McCluer’s 4 ADB benefits and that the Court must consider unidentified additional evidence outside 5 the administrative record in order to conduct an adequate de novo review of the benefit 6 decision. Pl.’s Mot. at 5-6. Given that Plaintiff has failed to specifically identify what 7 evidence it seeks to add to the record, the Court DENIES the motion without prejudice 8 until review of the benefit decision is conducted. 9 In Mongeluzo, an insured developed severe fatigue that prevented him from 10 working and was granted 24-months of disability benefits. His disability plan 11 administrator then concluded that Mongeluzo's disability was caused by a “mental 12 illness” or a “functional nervous disorder” which were conditions under the disability 13 policy that limited disability coverage to a 24-month period. After his administrative 14 appeal was denied, Mongeluzo was seen by an immunologist who opined that Mongeluzo 15 “had been disabled from [chronic fatigue syndrome] since April 1986 and that his 16 disability was not caused by a mental illness or functional nervous disorder.” Mongeluzo, 17 46 F.3d at 941. In federal court, on Defendant’s motion for summary judgment, 18 Mongeluzo asked the district court to consider the diagnosis of chronic fatigue syndrome 19 because it had been unavailable when he (1) became disabled in 1986, (2) presented a 20 claim for disability benefits to CIGNA in 1988; and (3) appealed to CIGNA in 1989. Id. 21 The district court declined to consider the new evidence, granted summary judgment in 22 favor of the Defendant and Mongeluzo appealed. The Ninth Circuit reversed finding the 23 critical terms of the plan were ambiguous and created a genuine issue of material fact as 24 to whether Mongeluzo's symptoms constituted a “mental illness” or a “functional nervous 25 disorder.” The court observed that additional evidence on remand was warranted where 26 the original hearing was conducted under a misconception of law; that is, the meaning of 27 1 “mental illness” or “functional nervous disorder.” Id. at 944. Therefore, the court 2 instructed the district court on remand to consider evidence regarding chronic fatigue 3 syndrome as one possible explanation for the disability that Mongeluzo had experienced. 4 Here, in defining “Accidental Bodily Injury”, the claims adjuster applied the 5 limiting definition: “bodily harm caused solely by external, violent and accidental means 6 which is sustained directly and independently of all other causes.” ECF No. 20-4, Pl.’s 7 Mot. at 5, 11; see ECF No. 27-2 at 186 (Ex. 9). Plaintiff submits that the limiting 8 definition of “Accidental Bodily Injury” was not sufficiently conspicuous so as to be 9 controlling. As such, Defendants’ denial of benefits was based on a misconception of the 10 law, which justifies an expansion of the record for the Court’s de novo review based on 11 the Ninth Circuit’s holding in Mongeluzo. Pl.’s Mot. at 4, 11-12; ECF No. 25, Pl.’s 12 Reply at 3. 13 As a starting point, Plaintiff has sought to “submit additional evidence outside of 14 the administrative record,” Pl.’s Mot. at 6, but, as Defendants note, Plaintiff does not 15 specify what exactly that additional evidence would be, Defs.’ Opp. at 6. To assuage this 16 concern, Plaintiff assured the Court “Plaintiff is not asking the Court to predetermine 17 what specific evidence it will consider at trial” but that she is “simply asking that she be 18 granted leave to submit evidence outside of the administrative record.” Pl.’s Mot. at 6. 19 This assurance does not mollify the Court’s concern about granting a request to 20 supplement the record with currently-unspecified materials. Bare statements that “there 21 is some real substance behind Plaintiff’s arguments,” ECF No. 20-4 at 19, by submitting 22 a declaration from an expert is not sufficient when making a request to open the record, 23 an action district courts can only take when exceptional circumstances “clearly establish” 24 further information is “absolutely necessary to perform an adequate review,” Mongeluzo, 25 46 F.3d at 944. 26 27 1 In this case, Plaintiff is requesting open-ended permission to augment the record 2 || with unidentified evidence. Mongeluzo does not support such a “cart before the horse” 3 |}approach. At trial or upon the filing of motions for summary judgment, the Court will 4 consider Plaintiff's argument that the limiting definition of a critical term was 5 || inconspicuous, and that the inconspicuous placement of the critical terms led Plaintiff to 6 || develop a “reasonable expectation” that the circumstances of Mr. McCluer’s death would 7 || qualify as “Accidental Bodily Injury”. At that time, the Court will entertain a request to 8 ||augment the record with specifically identified evidence. 9 CONCLUSION 10 Ultimately, the decision whether to allow a plaintiff to augment the administrative 11 ||record for the district court’s de novo review is a determination squarely within the 12 ||court’s discretion, which it should exercise only when additional information is necessary 13 || to perform an adequate review. Mongeluzo, 46 F.3d at 944. In this case, Plaintiff has 14 || failed to demonstrate what information she seeks to add to the record, why such 15 ||information is necessary for a de novo review, or why this information was unavailable 16 || when Defendants reviewed Plaintiff's ADB claim at the outset. Such an open-ended 17 ||request wholly contravenes the Ninth Circuit’s instructions in Mongeluzo and its progeny 18 || to only grant leave to augment the record when absolutely necessary. For the foregoing 19 || reasons, the Court DENIES without prejudice Plaintiff's motion to augment the 20 administrative record. Plaintiff may renew the request upon de novo review of the denial 21 || of benefits. 22 IT IS SO ORDERED. 23 ||Dated: November 9, 2021 <= 5 United States District Judge 26 27 , 28 21-cv-0008-GPC-WVG --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10084858. Public record. Not legal advice.