# Canter v. Alkermes Blue Care Elect Preferred Provider Plan

> District Court, S.D. Ohio · May 24, 2024

URL: https://www.frixlaw.com/law-library/cases/10384679

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** May 24, 2024
- **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/10384679

## How later opinions describe it (automated extraction)

- explaining that good cause exists in situations where a party’s opportunity to respond to his counterparty’s arguments have been impaired
- explaining that the standard rule for accrual is “when the plaintiff has a complete and present cause of action” (cleaned up)—in other words, when the harm supporting the claim to relief has materialized

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KEITH W. CANTER,

Plaintiff,
Case No. 1:17-cv-399
v.
JUDGE DOUGLAS R. COLE
ALKERMES BLUE CARE ELECT Magistrate Judge Litkovitz
PREFERRED PROVIDER PLAN, et
al.,

Defendants.
OPINION AND ORDER
Before the Court are: (1) several post-remand motions seeking (a) fees, (Docs.
101, 103), (b) to reopen the case, (Doc. 111), and (c) judgment as a matter of law in
the reopened case, (Doc. 112); (2) Magistrate Judge Litkovitz’s December 15, 2022,
Report and Recommendation (R&R, Doc. 125) addressing those post-remand motions;
(3) the parties’ objections to the R&R, (Docs. 128, 129); and (4) a fully briefed
miscellaneous motion for leave to file a response, (Docs. 136, 139, 141). The R&R
recommends that the Court (1) grant Plaintiff Keith Canter’s Motion for Award of
Attorney’s Fees for Remand (Doc. 103) in the amount of $204,771 in attorney’s fees
and $622.75 in costs; (2) deny as moot the previously filed duplicate copy of that
motion, (Doc. 101); (3) deny Canter’s Amended Motion to Reopen and Return Case to
Active Docket (Doc. 111); and (4) deny his Amended Second Motion for Judgment on
the Record after Remand (Doc. 112).
For the reasons stated below, the Court ADOPTS IN PART AND REJECTS
IN PART the R&R, (Doc. 125), SUSTAINS IN PART AND OVERRULES IN
PART Canter’s Objections (Doc. 128), and OVERRULES the Objections (Doc. 129)
lodged by Defendant Blue Cross Blue Shield of Massachusetts, Inc., (BCBSMA). The
Court also GRANTS Canter’s Motion for Permission to File Reply to BCBSMA’s

Response to Order (Doc. 136). In line with these rulings, the Court GRANTS Canter’s
Amended Motion to Reopen and Return Case to Active Docket (Doc. 111) and
GRANTS IN PART AND DENIES IN PART his Amended Second Motion for
Judgment on the Record after Remand (Doc. 112). And the Court GRANTS IN PART
AND DENIES IN PART Canter’s Motion for Award of Attorney’s Fees for Remand
(Doc. 103) and DENIES AS MOOT Canter’s other fee motion filed in duplicate, (Doc.
101).

As a result, after reopening the case, the Court AWARDS Canter $100,289.01
($15,267.01 of which is for an award of prejudgment interest) on Count II of
the Complaint, as well as $204,771 in fees and $622.75 in costs. Because Canter
has already been paid $85,022, BCBSMA owes Canter the prejudgment interest
award of $15,267.01 plus $204,771 in fees and $622.75 in costs.

BACKGROUND
This case has a long and arduous history but at its core is simply a dispute over
Canter’s entitlement to healthcare benefits offered by his former employer Alkermes,
Inc. (Op. & Order, Doc. 100, #2562). More specifically, Canter’s job enabled him to
participate in the Alkermes Blue Care Elect Preferred Provider Plan (the Plan)1

1 As the Court noted in its previous Opinion and Order terminating this case, Canter at first
sued the Plan but dismissed it as a defendant without prejudice on August 16, 2017. (Doc.
100, #2562 n.2). Thus, BCBSMA was the only defendant remaining.
underwritten and insured by BCBSMA, which also acted as the Plan’s claims
administrator. (Id.).
As is relevant here, Canter underwent a lumbar decompression and discectomy

at the Laser Spine Institute (LSI) for his ongoing hip, leg, and back pain on July 6,
2015. (Id. at #2562–63). Under the Plan, LSI was an out-of-state, out-of-network
medical care provider, which would normally require Canter to file the claims for
reimbursement. (Doc. 69-3, #1362; Doc. 77-2, #1710). But for whatever reason, LSI
itself sought reimbursement for the surgery on Canter’s behalf by sending two
different claim requests to BCBSMA’s Ohio affiliate (Canter never submitted any
claim relating to this surgery to BCBSMA or its Ohio affiliate). (Doc. 119-1, #2831;

see Doc. 128, #2885–86 (Canter’s acknowledging that LSI submitted the claims on his
behalf)). LSI submitted the first claim for $41,034 on July 30, 2015, to BCBSMA’s
Ohio affiliate; BCBSMA received notice of this first claim the same day. (Doc. 26,
#990; Doc. 135-1, #2949). And LSI submitted the second claim for $43,988 to
BCBSMA’s Ohio affiliate on August 10, 2015; BCBSMA received notice of the second
claim the next day. (Doc. 26, #1002; Doc. 135-1, #2950).

BCBSMA responded to both claims shortly after it received them. It sent
Canter an explanation-of-benefits form for the first claim on August 7, 2015, and an
explanation-of-benefits form for the second claim on August 28, 2015. (Doc. 26, #988,
1000). In both notices, BCBSMA informed Canter that BCBSMA anticipated he
would be responsible for paying for the full costs of the surgery. (Id.). But it explained
that its refusal to reimburse Canter for either claim at the time was because his
“medical records ha[d] been requested[, which meant that] review [of whether his
claims were covered] w[ould] continue when the[] [records] [we]re received.” (Id. at
#990, 1002). After BCBSMA received some (though not all) of the medical records,

however, it concluded that Canter had not established medical necessity and denied
coverage. (Doc. 100, #2564–65).
After trying to persuade BCBSMA to change its determination internally,
Canter via counsel filed this suit, in which Canter sought damages in the amount of
the LSI claims, prejudgment interest, and attorneys’ fees and costs, among other
relief. (Compl., Doc. 1, #14–15). Following discovery, Canter moved for judgment as
a matter of law. (Doc. 69). The Court responded to that motion by granting Canter

some relief, but not exactly the relief he wanted. Specifically, the Court concluded
that BCBSMA’s reliance on an incomplete administrative record and failure to accord
sufficient weight to all relevant medical factors listed in the Plan violated Canter’s
procedural rights under the Plan. (Doc. 100, #2591–93). And based on that violation,
the Court remanded the matter to BCBSMA for reconsideration of the benefits
decision. But the Court did not award any damages or other monetary relief. (Id. at

#2594).
Shortly thereafter, Canter moved for fees for successfully obtaining remand.
(Docs. 101, 103).2 BCBSMA opposed this request by contending that (1) the applicable
factors governing whether fees are owed in a suit brought under the Employee

2 Canter’s fee motion was filed in duplicate because the first docketed version of the motion
did not comply with Local Rule 5.1(c). There are no substantive differences between the two
documents. (Doc. 125, #2852 n.1).
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq., like the
one filed here, weighed against granting Canter his fees, and (2) if fees were awarded,
the requested amount was unreasonable. (Doc. 106, #2708–09).

Meanwhile, on remand, BCBSMA changed its decision and awarded Canter
$85,022 ($41,034 on the first claim, and $43,988 on the second). (Doc. 112-1, #2805–
06). Canter, however, believes he is entitled to more. So he filed two motions to obtain
additional monies. First, he moved to reopen the case. (Doc. 111). And second, he
moved for judgment as a matter of law on the record. (Doc. 112). According to Canter,
BCBSMA also owes Canter interest on this $85,022 payment under the Plan’s
interest provision, which operates as a sort of penalty by kicking in (at a high interest

rate) after a set time to dissuade BCBSMA from dragging its feet in responding to
any claim submissions.3 (Id. at #2799–801 (citing Doc. 77-2, #1710)). Canter argues
in the alternative that prejudgment interest is due anyway because a failure to pay
for the time value of the money owed would unjustly enrich BCBSMA. (Id. at #2802–
04).

3 This Plan provision to which Canter refers states in relevant part:
Blue Cross and Blue Shield will mail to you all forms that you will need within
15 days after receiving notice that you obtained some service or supply for
which you may be paid. (In the event Blue Cross and Blue Shield fails to comply
with this provision or, within 45 days of receiving your claim, fails to send you
a check or a notice in writing of why your claim is not being paid or a notice
that asks you for more information about your claim, you may be paid interest
on your claim when the claim is for a covered service that is furnished by a non-
participating hospital, other covered health care facility, or other covered non-
professional provider. This interest will be accrued beginning 45 days after
Blue Cross and Blue Shield receives your claim at the rate of 1½% for each
month, but no more than 18% in a year.
(Doc. 77-2, #1710).
BCBSMA opposed both motions. (Docs. 118, 119). It argued that the Plan
interest provision is inapplicable because LSI (not Canter) submitted the claims to
BCBSMA and BCBSMA timely responded (within the 45-day period required by the

Plan’s terms) explaining why at that time it was denying Canter’s claims. (Doc. 119,
#2825–28). And as to Canter’s other theory, BCBSMA argued that prejudgment
interest does not apply under common law principles because there has been no
money judgment entered here. (Id. at #2829). Canter thereafter replied. (Docs. 120,
121).
On December 15, 2022, the Magistrate Judge issued the R&R recommending
awarding Canter fees but denying his request for interest. (Doc. 125, #2864). As to

the former, the Magistrate Judge concluded that the relevant factors governing fee
awards favored an award here but recommended slightly reducing the requested
amount to ensure it did not include attorney hours expended on meritless motions.
(Id. at #2859–64). And as to the latter, the Magistrate Judge found that under the
unambiguous terms of the Plan, BCBSMA responded to LSI’s submission of claims
within the appropriate timeframe, thereby avoiding triggering the interest provision.

(Id. at #2857). As for Canter’s unjust-enrichment theory, the Magistrate Judge
concluded prejudgment interest did not apply because the money BCBSMA paid for
the surgery was owed to LSI, not Canter—in other words, “Canter lost no monetary
benefit because of BCBSMA’s delayed payment to [LSI].” (Id. at #2858).
Both parties objected. Canter claimed the R&R misread the Plan, failed to
appreciate that BCBSMA would be unjustly enriched if prejudgment interest were
not awarded, and overstepped by preemptively denying a request for fees related to
his current motion. (Doc. 128, #2876–77). He did not object, however, to the R&R’s
proposed reduction of the fee award. BCBSMA objected to the fee award. It reiterated

its belief that on a proper weighing of the relevant factors governing an award of fees,
the Court should conclude that Canter is not entitled to such an award. (Doc. 129,
#2897–98). But BCBSMA said not a word about the reasonableness of the
recommended award amount. The parties responded to each other’s objections. (Docs.
130, 132).
One would think this would be the end of the motions practice. But it was not.
The Court, in reviewing the papers, determined that the record did not establish

when LIS notified BCBSMA of the claims. (Doc. 133, #2943). Given BCBSMA argued
that the interest provision could not apply because it responded promptly to LSI’s
submissions, the Court ordered BCBSMA to “supplement[] the record with evidence
documenting the timing of the Laser Spine Institute’s submission of Canter’s claims.”
(Id. at #2944). BCBSMA did so on April 10, 2024. (Doc. 135). But it also decided to do
slightly more than to file the requested evidence—it argued (in two brief paragraphs)

that such evidence supported its position. (Id. at #2947–48). Not to be outdone, Canter
moved for leave to file a brief in response to BCBSMA’s two-paragraph argument.
(Doc. 136). Then, without receiving leave to do so, Canter also filed the brief on this
docket, rather than attaching it to the motion. (Doc. 138). So rather than disposing of
the pending motions upon BCBSMA’s filing of the supplemental evidence on April 10,
2024, the Court had to let this extra motion brief. BCBSMA responded opposing the
request for leave to file the response. (Doc. 139). And Canter then replied. (Doc. 141).
With that, this (overly) litigated matter is now ripe for the Court’s review.

LEGAL STANDARD
“Under Federal Rule of Civil Procedure 72(b)(3), district courts review an R&R
de novo after a party files a timely objection. But that review extends only to any
portion to which a proper objection was made.” Williams v. Parikh, No. 1:23-cv-167,
2023 WL 8824845, at *2 (S.D. Ohio Dec. 21, 2023) (cleaned up). In response to a valid
objection, the Court “may accept, reject, or modify the recommended disposition;

receive further evidence; or return the matter to the magistrate judge with
instructions.” Id. (quoting Fed. R. Civ. P. 72(b)(3)) (cleaned up). In contrast, if a party
makes only a general objection, that “has the same effect[] as would a failure to
object.” Howard v. Sec’y of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).
A litigant must identify each issue in the R&R to which he objects with sufficient
clarity, or else forfeit the Court’s de novo review of the issue. Miller v. Currie, 50 F.3d

373, 380 (6th Cir. 1995) (“The objections must be clear enough to enable the district
court to discern those issues that are dispositive and contentious.”). For unobjected
portions of the R&R, “the advisory committee notes to Federal Rule of Civil Procedure
72(b) suggest that the Court still must ‘satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.’” Redmon v. Noel, No. 1:21-
cv-445, 2021 WL 4771259, at *1 (S.D. Ohio Oct. 13, 2021) (collecting cases).
LAW AND ANALYSIS
Because this case has four pending motions, a roadmap is helpful. The most
logical path forward is actually for the Court to work its way backwards in time. This
is because the last filed motion, Canter’s request for leave to file a reply, governs the

arguments the Court may consider in evaluating the parties’ objections to the R&R.
After granting Canter the right to file that reply (even though Canter already took
the liberty of filing it), the Court turns to the motion for judgment as a matter of law
on the record after remand. This is because disposing of Canter’s request for
additional relief conclusively answers whether this case needs to be reopened. While
the Court finds that Canter’s argument regarding the application of the Plan’s

penalty interest provision lacks merit, the same cannot be said for Canter’s argument
about prejudgment interest. Given the payment of $85,022 did not constitute
complete satisfaction for Canter’s claim, the Court will grant the motion to reopen
and then grant Canter judgment as a matter of law. Finally, that leaves Canter’s
motion for fees. As explained below, the Court finds some fees and costs are properly
awarded to Canter. With that, this matter should finally see its long-awaited end.

A. Motion for Leave to File a Reply
Canter’s first motion is a request to file a reply brief.4 There he contends that
BCBSMA’s supplementing the record with the evidence the Court requested means

4 Though Canter labels his brief a “reply” brief, it is really no such thing. In substance, see
McGlone v. Bell, 681 F.3d 718, 728 n.2 (6th Cir. 2012) (noting district courts retain “discretion
to address substance over form”), Canter’s brief is a memorandum responding to newly added
evidence filed at the direction of the Court. In other words, it is akin to a sur-reply given it
responds to a filing of the opposing side outside of the standard briefing regiment.
Canter has a right to respond to BCBSMA’s filing. (Doc. 136). According to Canter,
this is warranted because he claims BCBSMA’s response to the Court’s Order
(1) actually included argument (not just evidence as requested), and (2) in fact raised

a new argument (i.e., that the Plan’s interest provision did not apply to Canter
because BCBSMA timely provided notice of its decision on his claims in accordance
with the deadline set forth in that provision—the argument the Magistrate Judge
credited in the R&R). (Id. at #2951–52).
Canter cites no standard governing whether leave should be granted. But the
Court agrees with BCBSMA that Canter must show “good cause” as the local rules
bar the filing of “additional memoranda beyond those enumerated … except … for

good cause shown” and Canter’s brief responding to evidence filed at the direction of
the Court does not fit into any enumerated category. S.D. Ohio Civ. R. 7.2(a)(2); cf.
Canter v. Alkermes Blue Care Elect Preferred Provider Plan, 593 F. Supp. 3d 737,
744–45 (S.D. Ohio 2022) (holding that the filing of a sur-reply, not governed by either
a Federal Rule of Civil Procedure or Local Rule, must be supported by good cause).
So the question is whether Canter has shown good cause. He has. As Canter

observes, BCBSMA did not follow the Court’s instructions “to substantiate its
argument … by supplementing the record with evidence.” (Doc. 133, #2943–44
(emphasis added)). The Court did not ask BCBSMA to explain that evidence or to put
a gloss on it. The Court merely asked for BCBSMA simply to file such supplemental
evidence. Instead, beyond filing the requested documentation, BCBSMA also elected
to editorialize the declaration by opining on its legal effect. (Doc. 135, #2947–48
(arguing twice what “[t]he Callahan Declaration establishes”)). While Canter is
wrong to suggest that this reflects a “new argument,”5 the Court nonetheless agrees
with Canter that he should have an opportunity to respond because BCBSMA

exceeded the scope of the Court’s request. Cf. Key v. Shelby Cnty., 551 F. App’x 262,
265 (6th Cir. 2014) (explaining that good cause exists in situations where a party’s
opportunity to respond to his counterparty’s arguments have been impaired). And
besides, authorizing this filing would cause BCBSMA no prejudice. Golden Eagle Res.
II, LLC v. Rice Drilling D, LLC, No. 2:22-cv-2374, 2023 WL 1927799, at *3 (S.D. Ohio
Feb. 10, 2023) (“Courts in the Southern District of Ohio may permit a party to file a
sur-reply even without showing good cause if it does not result in prejudice toward

the opposing party.”). Though BCBSMA frets about Canter’s using the new brief to
make an argument not stated before, (Doc. 139, #2969), the Court is not convinced.
The reply brief strikes the Court as employing different words to restate a theory he
posited in his objections to the R&R—that (1) timely notice under the Plan means
notice that procedurally complies with the applicable regulations and (2) the August
2015 explanation-of-benefits forms were not sufficient under that standard.

(Compare Doc. 128, #2883–86, with Doc. 138, #2963–65). So it is not as though

5 Canter’s contention that BCBSMA’s timeliness argument is newly raised is meritless. As
BCBSMA points out, it staked out this exact position in its opposition brief before the
Magistrate Judge’s R&R. (Doc. 119, #2827). And to the extent that this argument was not
clear (it was), Canter was on notice of the need to respond directly to that argument when it
served as the legal basis for the Magistrate Judge’s recommendation that the Court deny
Canter’s renewed motion for judgment as a matter of law. (Doc. 125, #2857). So the argument
was properly before the Court at all relevant stages of this litigation, and Canter cannot now
be heard to complain that he never had the opportunity to respond.
Canter’s brief says anything BCBSMA or the Court has not already seen in the rest
of the multitudinous filings in this case.
Accordingly, the Court will grant Canter’s motion. Normally, a party would

have attached the proposed filing as an exhibit to its request for leave. And the Court
would then enter an order directing that party to docket the proposed filing. But here,
when seeking leave to file his proposed brief, Canter took it upon himself also to file
the proposed brief on the Court’s docket without first having obtained leave from the
Court. (Doc. 138). So no such order is necessary. But the Court pauses to note that
Canter should not have done so. And while this misstep proved harmless here (given
the Court’s decision to grant leave), the Court admonishes Canter’s counsel not to do

the same in the future when he is neither authorized by the applicable rules nor
granted leave from the Court to file the document in question.
B. The Motions to Reopen and for Judgment as a Matter of Law
With that out of the way, Canter’s motion for judgment as a matter of law,
(Doc. 112), boils down to whether he should receive interest on the $85,022 BCBSMA

awarded him after the Court remanded the matter for further review by BCBSMA as
the Plan Administrator.6 The Court starts by explaining why Canter’s argument

6 The Court agrees with the Magistrate Judge that BCBSMA’s “waiver” argument was
misplaced. (Doc. 125, #2854–55 (citing Doc. 119, #2824–25)). Canter has pushed for interest
from the very outset of this lawsuit. (See Doc. 1, #14). And while he did not specifically argue
about this issue while challenging BCBSMA’s position that no money was ever due under the
Plan, Canter’s simple failure to raise it until after remand cannot, on its own, be inconsistent
with a claim for interest, let alone an implied waiver of such a claim. Hebrard v. Nofziger, 90
F.4th 1000, 1006 (9th Cir. 2024) (explaining that the mere “failure to raise” an argument
cannot amount to an implied waiver of that argument because “[a] finding of waiver requires
evidence of a party’s actions that evince his intentional relinquishment of a known right”
about the Plan’s specific penalty interest provision is baseless. But it then explains
why he is entitled to prejudgment interest on his claim in this action under standard
common law principles.

1. The Plan’s Penalty Interest Provision
As a reminder, Canter first seeks to have interest applied to his $85,022
payment from BCBSMA under the Plan’s penalty interest provision. (Id. at #2799–
801). As a matter of law of the case, (Doc. 100, #2585–89), and given BCBSMA does
not argue otherwise in the papers currently before the Court, the Court agrees with

the Magistrate Judge that it should review the Plan’s terms de novo, (Doc. 125,
#2855). Fulkerson v. Unum Life Ins. Co. of Am., 36 F.4th 678, 680–81 (6th Cir. 2022).
A de novo review calls on the Court to review the policy’s text and “give effect to its
plain meaning in an ordinary and popular sense.” Id. at 681 (emphasis added)
(cleaned up). What does the penalty interest provision say?
In the event Blue Cross and Blue Shield fails to comply with this
provision [requiring it to mail a member who is filing his own claims the
necessary claims forms], or within 45 days of receiving your claim, fails
to send you a check or a notice in writing of why your claim is not being

(emphasis added) (citing Hill v. Xerox Bus. Servs., LLC, 59 F.4th 457, 471–79 (9th Cir.
2023))). Moreover, whether interest applies to monies paid under a plan is not usually a ripe
dispute until money exchanges hands and the recipient notices that interest was not included
in that sum. Cf. Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cali.,
522 U.S. 192, 201 (1997) (explaining that the standard rule for accrual is “when the plaintiff
has a complete and present cause of action” (cleaned up)—in other words, when the harm
supporting the claim to relief has materialized); see generally 1A Corpus Juris Secundum,
Actions § 291 (2024) (Generally, “when a wrong has been committed or a breach of duty has
occurred, the cause of action has accrued.”). So it would make little sense for Canter to have
expended any energy contesting an argument about interest until it became clear that
BCBSMA did not intend to pay Canter such interest—especially given BCBSMA had argued
that it was categorically not obligated to pay Canter any money under the Plan.
paid or a notice that asks you for more information about your claim,
you may be paid interest on your claim[.]
(Doc. 77-2, #1710). A plain, ordinary reading of that provision suggests that the
interest provision is triggered if at least one of two possible preconditions occurs:
BCBSMA (1) fails to send claims forms if required, or (2) fails to respond to the
submission of a claim in 45 days. (In other words, this provision operates as a penalty
such that BCBSMA’s delay in responding to claims submissions is penalized by the
addition of interest.) And under that de novo interpretation of the Plan’s terms (i.e.,

having given no deference to BCBSMA’s interpretation), the Court sees no error with
the Magistrate Judge’s finding that BCBSMA did not need to send any claims forms
to Canter because LSI submitted the claims on his behalf, (Doc. 125, #2857)—let alone
clear error, which is the standard the Court must use given Canter did not object to
this portion of the R&R, (Doc. 128, #2885–86 (“Because it was unnecessary for Canter
to file the claim himself, … it was unnecessary for Canter requests [sic] the forms and

therefore unnecessary for BCBSMA to send forms to Canter.”)); Fed. R. Civ. P. 72(b)
adv. comm. notes (suggesting that unobjected portions of R&R are reviewed for clear
error). So the penalty interest provision applies here only if BCBSMA did not respond
to a claim submission within 45 days.
Relatedly, on a de novo review (as Canter did raise an objection on this
ground), the Court also finds that the Magistrate Judge did not err in concluding that
BCBSMA timely responded to the notice of LSI’s claims (i.e., that it did so within 45

days). (Doc. 125, #2857). As detailed in the background section, LSI submitted two
claims to BCBSMA: one on July 30, 2015, and one on August 10, 2015. (Doc. 135-1
¶¶ 4–5, #2949–50). Less than 45 days later, BCBSMA sent Canter two explanation-
of-benefits forms noting that no money was being paid at that time. (Doc. 26, #988,
1000). And, as required, BCBSMA explained why it was not paying Canter’s claim on

that date: BCBSMA lacked sufficient information to evaluate the claims and had
requested records. (Id. at #990, 1002). In other words, “within 45 days of receiving
[Canter’s] claim, [BCBSMA] … sen[t] [Canter] … a notice in writing of why [Canter’s]
claim [wa]s not being paid.” (Doc. 77-2, #1710). An ordinary reader would understand
these explanation-of-benefits forms as clearly and unambiguously satisfying the
notice required by the plain terms of the penalty interest provision, and as a result
no interest obligations were triggered. Thus, Canter is owed nothing additional under

this Plan provision.
Canter seeks to evade this reading by suggesting (without caselaw support)
that “notice”—when used in the penalty interest provision—means adequate notice,
which requires a court to review whether the relevant documents complied with all
applicable regulations. (Doc. 128, #2880–86; Doc. 138, #2963–66). This argument
fails. As stated just a few paragraphs ago, the applicable standard requires the Court

to give legal force to the “plain meaning in an ordinary and popular sense” of the
Plan’s terms. Fulkerson, 36 F.4th at 681 (citation omitted). Arguing that a word in
the Plan imports a legal notion set forth in ancillary regulatory requirements (not
found within its four corners) does not come anywhere within striking distance of
“plain meaning.” Id. Rather than asking the Court to adopt language’s “ordinary and
popular sense,” id. (citation omitted), Canter’s argument demands application of
notice as a term of art. See generally Term of Art, Black’s Law Dictionary (11th ed.
2019) (“A word or phrase having a specific, precise meaning in a given specialty, apart
from its general meaning in ordinary contexts.” (emphasis added)). Thus, Canter’s

argument, at its base, demands the Court rewrite the standard of interpretation that
applies to ERISA plans like the one at issue.7 The Court declines to do so. Under the
plain terms of the Plan, BCBSMA provided notice within 45 days of receipt of both
claims that no payment was forthcoming. (Doc. 26, #988, 1000; Doc. 135-1 ¶¶ 4–5,
#2949–50). And those forms supplied an answer to the question “why [Canter’s] claim
[wa]s not being paid” at the time, (Doc. 77-2, #1710): BCBSMA was waiting for his
medical records. The Plan’s plain language therefore bars application of the penalty

interest provision here. And Canter is owed no more money under that specific term.
2. Canter is Entitled to Recover Prejudgment Interest
So that leaves Canter’s other theory that the common law principles of unjust
enrichment permit him to recover prejudgment interest on the $85,022 that BCBSMA
paid him. (Doc. 112, #2802–04). The Court notes that although Canter characterizes

his request for prejudgment interest as arising under an unjust enrichment or

7 Even assuming the Court could apply some meaning to language in the Plan divorced from
the plain and ordinary meaning of the terms employed, Canter has failed to point to any
textual clues (or otherwise) suggesting why the Court should read a handful of regulations
as being implicitly invoked by the use of the term “notice.” That inability to ground his
specialized reading of the interest provision in the Plan’s text is also fatal to Canter’s
argument. Williams v. Metzler, 132 F.3d 937, 947 (3d Cir. 1997) (“Absent indicia [of use
of] … a specialized meaning[,] … we will not alter [a common term’s] accepted usage.”).
restitution theory,8 he is in fact invoking the common law right to prejudgment
interest. See McGlone v. Bell, 681 F.3d 718, 728 n.2 (6th Cir. 2012) (noting district
courts retain “discretion to address substance over form”). Prejudgment interest is a

common law measure of damages that attaches to a claim for damages of a sum
certain amount; it reflects the notion that the creditor should be compensated for the
debtor’s delay in payment. Young v. Godbe, 82 U.S. (15 Wall.) 562, 565 (1872) (“If a
debt ought to be paid at a particular time, and is not, owing to the default of the
debtor, the creditor is entitled to interest from that time by way of compensation for
the delay in payment. And if the account be stated, as the evidence went to show was
the case here, interest begins to run at once.”). In other words, the original claim for

a sum certain amount itself impliedly includes a request for relief equal to the sum
certain amount and the value of interest measured from the time the monies were
due and owing to the time that a check is cut. Royal Indem. Co. v. United States, 313
U.S. 289, 295–96 (1941) (“A suit upon a contractual obligation to pay money at a fixed
or ascertainable time is a suit to recover damage for its breach, including both the
principal amount and interest by way of damage for delay in payment of the principal

after the due date.” (emphasis added)).
As noted above, see supra note 6, Canter’s claim from the inception of this
lawsuit has been requesting his full contractual remedies—reimbursement for the
two balances (which are the easily ascertainable amounts of $41,034 and $43,988,

8 This is not to say Canter was off base to invoke unjust enrichment and restitution principles.
As explained below, the Sixth Circuit requires district courts to consider equitable principles
when fashioning an award of prejudgment interest. Schumacher v. AK Steel Corp. Ret.
Accumulation Pension Plan (Schumacher I), 711 F.3d 675, 685–86 (6th Cir. 2013).
respectively) arising from his July 6, 2015, surgery plus prejudgment interest. (Doc.
1 ¶¶ 12–13, 44–49, #3–4, 13–14). So, to resolve that claim completely, Canter would
need either (1) to receive payment in the amount of $85,022 plus prejudgment

interest, or (2) to obtain an adverse legal ruling that he is entitled to no benefits under
the policy. Royal Indem., 313 U.S. at 295–96.
So which is it here? To be sure, the Court has not ruled one way or another as
to whether Canter is entitled to benefits under the Plan. The prior order in this case
only remanded for BCBSMA to consider Canter’s claim of benefits anew on a more
complete record—it did not declare Canter’s entitlement to benefits. (Doc. 100,
#2594). But the lack of a judicial determination of entitlement to benefits imposes no

bar to awarding prejudgment interest here. This is because BCBSMA, on remand,
waived any defense that Canter is not entitled to monies under the Plan. Specifically,
on May 16, 2022, BCBSMA sent Canter a letter approving his claim under the Plan.
(Doc. 128-1). In that letter, BCBSMA made clear that it was “approving [Canter’s]
appeal for coverage of the procedure,” an approval that came as a result of his “request
[] for [BCBSMA] to provide benefits.” (Id. at #2895 (emphases added)). And were this

and all other details in the letter not sufficiently clear, BCBSMA made its intention
express by noting that the awarded benefits would be “paid directly to [Canter].” (Id.
at #2896 (emphasis added)). In other words, BCBSMA, on reconsideration,
determined that Canter was in fact owed money under the Plan and therefore should
have been paid benefits. In adopting that legal position, BCBSMA acknowledged that
Canter merits all relief that legally follows from his obtaining benefits under the
Plan. As noted above, ‘all relief’ includes prejudgment interest as a matter of common
law, Royal Indem., 313 U.S. at 295–96; Young, 82 U.S. (15 Wall.) at 565, which
common law rule applies equally to claims brought under ERISA, Bricklayers’

Pension Tr. Fund v. Taiariol, 671 F.2d 988, 989–90 (6th Cir. 1982) (concluding that
prejudgment interest may be awarded under ERISA because the Supreme Court has
held that such common law rules apply to statutory causes of action unless the statute
directs otherwise). So, given BCBSMA’s concession about Canter’s rights under the
Plan, Canter is correct that he merits further relief in the form of reopening the cause
and entering judgment that includes an award of (the requested-but-so-far-missing)
prejudgment interest.

The Magistrate Judge found otherwise—a position BCBSMA defends.
According to the Magistrate Judge’s R&R, “Canter lost no monetary benefit” because
“he paid the Laser Spine Institute only $1,000 for his back surgery” and “BCBSMA
owed the claim amount to the Laser Spine Institute, not to Canter.” (Doc. 125, #2858
(citing Doc. 123-1)). BCBSMA endorses this theory that Canter was not actually
entitled to the proceeds from the Plan, (Doc. 132, #2939–41), and argues further that

Canter cannot be awarded prejudgment interest because “[t]here is no money
judgment,” (id. at #2939 (relying on the holding in Guest-Marcotte v. Life Ins. Co. of
N. Am. (Guest-Marcotte I), No. 15-cv-10738, 2019 WL 3388478, at *3 (E.D. Mich. July
26, 2019))).9

9 There is perhaps another argument that BCBSMA might have pressed as to why Canter is
not entitled to recover prejudgment interest under the default common-law rule: that the
Plan’s express inclusion of a provision governing when interest applies is best construed as
Start with the theory that Canter is not owed any additional monies because
the claim under the Plan is held by someone else. While intriguing on first blush, the
Court cannot credit that argument. Yes, it seems odd that LSI, which submitted the

claim, is not being reimbursed for the costs of the surgery.10 But the Court cannot
overlook BCBSMA’s behavior on remand. Whatever merit BCBSMA’s defense—that
LSI is owed the Plan proceeds on the claim, not Canter—might have had before
remand, it has no merit now, as BCBSMA has decided that as a matter of the Plan,
Canter should be reimbursed for his July 6, 2015, surgery. That is, BCBSMA, which
was fully aware from the beginning that LSI submitted the claims, (see Doc. 25, #705
(BCBSMA’s notifying LSI that the claim was denied); Doc. 135-1, #2949–50 (noting

that BCBSMA was made aware of LSI’s submission of claims in July and August of
2015)), nonetheless concluded on remand that Canter himself was entitled to benefits

impliedly excluding the availability of interest for any delay in payment that does not trigger
that Plan provision. Take the extreme example of this. One could conceive of a world in which
the Plan makes clear that the only interest awarded for a delayed payment is set forth in the
Plan itself (i.e., “This provision governs the application of interest and is the exclusive remedy
a party may obtain for any delay in payment.”). Absent finding such a provision violates
public policy or is unconscionable, it would seem the Court would be required to hold that if
the claimant does not satisfy the provision in the Plan authorizing interest, he would not be
entitled to obtain interest through a common law remedy. Put differently, there does not
appear to be a rule preventing parties from waiving their common law remedies by contract,
including a common-law right to recover prejudgment interest (absent some kind of
unconscionability or public policy argument as alluded to above). One could thus foresee an
argument applying the same logic here to suggest that the Plan’s penalty interest provision
is the sole means by which Canter could recover interest on his claims. All that said, the
Court should not be understood to be opining on whether such an argument would have merit
here. BCBSMA never presented such an argument to the Court, which means the Court need
not and does not address it on the merits. SAT Tech., Inc. v. CECO Env’t Corp., No. 1:18-cv-
907, 2023 WL 6119934, at *7 n.14 (S.D. Ohio Sept. 19, 2023).
10 One may be wondering why LSI was never joined as a necessary party to this suit.
BCBSMA’s attorney represents that LSI is now defunct. (Doc. 72, #1443 n.5). That said, there
still remains the curious anomaly that LSI’s creditors are not knocking at the door seeking
the reimbursement themselves.
under the Plan, (Doc. 128-1). Put differently, BCBSMA, despite knowing of LSI’s
potential interest in the funds, instead concluded on remand that the Plan language
required BCBSMA to provide coverage for the surgery by awarding Canter the

requested benefits and by paying him directly. See Andreae v. Cap. One, 1:22-cv-618,
2024 WL 1579914, at *5 (S.D. Ohio Apr. 11, 2024) (discussing the requirements for
implied waiver).
BCBSMA cannot now reverse course and disclaim Canter’s entitlement to
benefits under the Plan. While it may now regret that decision, the approval letter
affirmatively shows that BCBSMA has taken the position that Canter is owed money
under the Plan. And, as a result, because BCBSMA is bound by this knowing and

voluntary decision, the Court cannot overlook its legal effect. See Wood v. Milyard,
566 U.S. 463, 466 (2012) (“A court is not at liberty … to bypass, [to] override, or [to]
excuse a [] deliberate waiver of a limitations defense.”). Namely, the legal effect of
Canter’s entitlement to a sum certain amount of benefits is that he equally enjoys a
right to prejudgment interest for the delay in payment of those funds. Royal Indem.,
313 U.S. at 295–96. Hence, the Magistrate Judge erred in concluding (and BCBSMA

is wrong to argue) that Canter cannot obtain prejudgment interest because he paid
only $1,000 for the surgery. That fact simply does not weigh into whether he is
entitled to prejudgment interest once it is clear that BCBSMA itself has admitted
Canter was owed money under the Plan.11

11 That said, Canter’s being out of pocket only a grand does factor into the Court’s
consideration of the equities that is required when assessing the actual value of the
prejudgment interest award. Schumacher I, 711 F.3d at 685–86.
BCBSMA’s alternative argument does not work either. Essentially, in claiming
that the Court cannot award prejudgment interest because there is no money
judgment in this case, BCBSMA is arguing that it has mooted Canter’s claim by

paying him the sum certain amount of $85,022. (Doc. 119, #2820). In other words,
BCBSMA contends that it paid Canter the full benefit under the Plan, and thus
Canter has no claim to anything more. (Id.).
But that argument cannot work. The claim Canter brought was for the monies
unlawfully withheld from him—a specified amount of $85,022 that he claims
BCBSMA should have paid him long ago. And as explained above, under common
law, prejudgment interest attaches at the moment such money is due and owing when

no payment has been made. Young, 82 U.S. (15 Wall.) at 565 (explaining that once
payment is not made for the sum certain owed, “interest begins to run at once”). In
other words, Canter’s original claim necessarily includes a demand for prejudgment
interest (and he also specified he was seeking it), so anything less than the sum
certain plus that interest is less than full satisfaction for that claim. BCBSMA cannot
partially compensate Canter for less than his claim and then use that as a basis to

evade a judgment for the remaining amount (unless Canter expressly agrees to
release his claim). See Calderon v. Moore, 518 U.S. 149, 150 (1996) (“Even the
availability of a partial remedy is sufficient to prevent a case from being moot.”
(cleaned up)); cf. Jarrett v. United States, 79 F.4th 675, 680 (6th Cir. 2023) (“By
issuing Jarrett a check for the overpayment plus interest, the IRS resolved Jarrett’s
claim and mooted the refund lawsuit.” (emphasis added)). For that reason, there is
no obstacle to the Court’s reopening the case and entering a judgment providing the
full remedy Canter requested (and to which he is now legally entitled given
BCBSMA’s determination that he was owed money under the Plan)—an award of the

benefits amount plus prejudgment interest (adjusted for the $85,022 payment
already made).12
As a result, the Court finds that Canter’s motion to reopen has merit and
grants it. And the Court finds that a prejudgment interest award follows as a matter
of law given BCBSMA’s behavior on remand acknowledging that Canter was owed
benefits under the Plan. (Accordingly, the Court rejects the Magistrate Judge’s
contrary recommendations.)

The sole question that therefore remains is the amount of interest to award.
Under Sixth Circuit law, “the district court may award pre-judgment interest at its
discretion in accordance with general equitable principles.” Schumacher v. AK Steel
Corp. Ret. Accumulation Pension Plan (Schumacher I), 711 F.3d 675, 685–86 (6th Cir.
2013) (cleaned up). A court abuses its discretion if it mechanistically applies the
statutory interest rate set forth in 28 U.S.C. § 1961(a). Id. at 686. But a Court can

12 True, BCBSMA cites a case for the proposition that a court could not award prejudgment
interest upon a partial payment of the benefits on remand. (Doc. 119, #2829 (citing Guest-
Marcotte I, 2019 WL 3388478); Doc. 132, #2939 (same)) But that case did not consider that a
claim for benefits under an ERISA plan necessarily includes an attached demand for
prejudgment interest beyond the sum certain amount, see Guest-Marcotte I, 2019 WL
3388478, at *3, so the Court declines to follow it. The W. & S. Life Ins. Co. Benefits Comm. v.
Jenkins, 1:23-cv-609, 2024 WL 2132416, at *3 n.2 (S.D. Ohio May 13, 2024) (“Other district
courts’ decisions are not binding—only persuasive. And to the extent their decisions are
unreasoned; conflict with binding, superior authority; or otherwise lack persuasive legal
analysis justifying their holdings, a district court may reject such caselaw.” (citations
omitted)).
award such a rate if it “strike[s] [the proper] balance between making sure not to
impose a punitive measure and allowing a Plan or Fund to ‘retain the interest it
earned on funds wrongfully withheld would be to approve of unjust enrichment.’” Id.

(citation omitted). Here, Canter says that the Court should award interest computed
at the prime rate. BCBSMA, on the other hand says interest (if awarded at all) should
be at the lower rate specified by the statute above (basically the 1-year Treasury Bill
rate).
In considering the appropriate rate here, there are factors weighing on both
sides of the ledger. As the Court holds above, BCBSMA has conceded that it
wrongfully withheld monies from Canter that he was owed under the Plan, such that

refusing to award any amount of interest would result in its being unjustly enriched
as a result. Id. at 687. But that alone does not equate to application of the prime
interest rate here. This is because, as Canter acknowledges, he paid only $1,000
dollars to LSI. (Doc. 123-1). So to the extent he was out of pocket certain expenses,
they were generally less than the actual amount awarded under the Plan. Cf. Sun
Life Assurance Co. of Can. v. Jackson, No. 3:14-cv-41, 2018 WL 4489289, at *7 (S.D.

Ohio Sept. 19, 2018) (considering that the insurer’s paying the wrong person weighed
in favor of application of the statutory prejudgment interest rate). And that means
awarding the prime rate risks inappropriately giving Canter a windfall, thereby
rendering the award of interest punitive rather than compensatory. Schumacher I,
711 F.3d at 686 (requiring courts to ensure that the prejudgment interest award is
not punitive); cf. In re Millenium Lab Hldgs. II, LLC, 945 F.3d 126, 143 (3d Cir. 2019)
(“Equity abhors a windfall.” (citation omitted)). And considering that for almost all
the time during which payment was delayed inflation hovered around 2% (dropping
to close to 1% during 2016, 2019, and 2020, and even around zero during portions of

2015 and 2020), Current US Inflation Rates: 2000–2024, US Inflation Calculator (last
visited May 15, 2024), https://perma.cc/9QQZ-YMRR, awarding an interest rate
below the prime rate would still be a sufficient award to make Canter whole. Sun
Life, 2018 WL 4489289, at *7.
Balancing all these considerations, the Court concludes that, while an award
of prejudgment interest is required, the other equity factors, especially that setting a
high interest rate will be punitive in light of the facts here, point to a blended

prejudgment interest rate (explained below) that uses the weekly average 1-year
constant maturity Treasury yield referenced in 28 U.S.C. § 1961(a) as the baseline.
That rate best fits the remedial interests under ERISA and adequately compensates
Canter without penalizing BCBSMA.13 Id.; see Hi-Lex Controls, Inc. v. Blue Cross

13 While Canter pushes for application of the prime rate of return, he does so by reference to
rates set by other courts based on the facts in those cases and by highlighting the recent
uptick in interest rates in the last three or four years. (See Doc. 112, #2803–04; Doc. 120,
#2841–42; Doc. 128, #2889–90). The problem with rote reliance on the rates set by other
courts is that those rates are tailor-made for the facts of those cases, which means they are
useful as a cross-check only insofar as the equities balanced in those cases are similar to
those at issue here. See Jenkins, 2024 WL 2132416, at *7 n.5 (“The fees awarded in other
cases—dependent on the circumstances of those cases … —are helpful but only as cross-
checks because they cannot and do not serve as substitutes for [Plaintiff’s] explaining
why its behavior here is reasonable as measured against the complexity of this case.”). And
while Canter highlights both the importance of placing the receiving party in the same stead
had the payment not been delayed and general market conditions, he did not consider or
discuss the other relevant factors, such as overall low inflation rates, the risk of punitive
awards were the interest rate higher, and the fact that he paid LSI only $1,000, in the context
of what proper rate should be awarded here. As the Court explains, consideration of the
entirety of these issues compels the application of the lower, statutory rate, as opposed to the
much higher prime rate.
Blue Shield of Mich., 751 F.3d 740, 751–52 (6th Cir. 2014) (affirming a district court’s
use of the blended rate for each of the years of the 17-year period in determining the
proper prejudgment interest award amount).

Both parties seem to agree that the Court should begin calculating interest
from the date of the surgery in question. (Doc. 119, #2830; Doc. 128, #2889; see Doc.
128-1, #2895 (“This approval is valid for date of service July 6, 2015.”)). Using that
date as the start date, the Court calculates the blended prejudgment interest owed
as follows. First, it obtains all the weekly averages for the 1-year constant maturity
Treasury yield from July 6, 2015, until today from the Board of Governors of the
Federal Reserve System. Data Download Program, Fed. Rsrv. Bd., (last visited May

24, 2024), https://perma.cc/BL6C-STDD. The Court, for each year, takes the mean
interest rate of those weekly averages, which results in an average rate for each
relevant year (or portion of the year).14 See 28 U.S.C. § 1961(b) (“Interest … shall be
compounded annually.”). Then, for the years in which only a part of the year applies
(here, 2015 from the date of the surgery until the end of the year, as well as 2024
from the start of the year until now), the Court calculates the prorated annual rate

for the relevant portion of the year (i.e., multiplies the applicable average annual rate
by the ratio of the number of days for which interest accrues in that year to the total
number of days in that year).15 Finally, the Court compounds the interest annually

14 This yields yearly average interest rates of 0.412% for the relevant portion of 2015, 0.616%
for 2016, 1.204% for 2017, 2.331% for 2018, 2.058% for 2019, 0.385% for 2020, 0.105% for
2021, 2.808% for 2022, 5.083% for 2023, and 4.992% for the relevant portion of 2024.
15 Doing so yields the prorated interest rates of 0.202% for 2015 and 1.964% for 2024.
by multiplying the principal of $85,022 by the prorated rate for 2015 (prorated by the
portion of the year during which interest was owed), the full-year average rates for
2016–2023, and the prorated rate for 2024. Doing so yields a total of $100,289.01,

which means the total amount Canter is owed is $85,022 in principal plus $15,267.01
in interest. Therefore, the Court will enter judgment awarding Canter this amount
but noting that partial payment has already been made such that BCBSMA’s
outstanding obligation is just the interest in the amount of $15,267.01.
* * *
Simply, while the Plan plainly does not authorize an award of interest, Canter

is correct that he is entitled to prejudgment interest to receive full satisfaction for his
ERISA claim given BCBSMA has now taken the position that Canter was entitled to
benefits under the Plan—prejudgment interest is just part of his recovery having
succeeded on the claim. Taiariol, 671 F.2d at 989–90. As a result, the Court grants
his Amended Motion to Reopen and Return Case to Active Docket (Doc. 111) as well
as his Amended Second Motion for Judgment on the Record after Remand (Doc. 112).

And, as explained, the Court will award Canter judgment in his favor on Count II of
his Complaint and award him $85,022 plus prejudgment interest calculated using
the blended prejudgment interest rate that accords with 28 U.S.C. § 1961. That
means BCBSMA owes Canter $100,289.01 total (which is necessarily offset by the
$85,022 payment BCBSMA already made).
C. Motion for Fees
That bring us to Canter’s request for fees and costs for successfully obtaining
a remand in this action. (Doc. 103). In ERISA actions, the Court has the discretion to
award fees and costs under § 502(g)(1). 29 U.S.C. § 1132(g)(1). As the Sixth Circuit

explained, this discretion is governed by consideration and balancing of five factors:
(1) the degree of the opposing party’s culpability or bad faith; (2) the
opposing party’s ability to satisfy an award of attorney’s fees; (3) the
deterrent effect of an award on other persons under similar
circumstances; (4) whether the party requesting fees sought to confer a
common benefit on all participants and beneficiaries of an ERISA plan
or resolve significant legal questions regarding ERISA; and (5) the
relative merits of the parties’ positions.
Sec’y of Dep’t of Lab. v. King, 775 F.2d 666, 669 (6th Cir. 1985); First Tr. Corp. v.
Bryant, 410 F.3d 842, 851 (6th Cir. 2005) (explaining that the factors are “simply
considerations representing a flexible approach”). If after consideration of these
factors the Court finds that an award of fees and costs is warranted, it still must
assess the reasonableness of the requested award, which requires application of the
lodestar approach (i.e., multiplying a reasonable rate by the number of hours an
attorney reasonably should have expended on the suit). Bldg. Serv. Loc. 47 Cleaning
Cont’rs Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1401–02 (6th Cir. 1995).
The Magistrate Judge found that an award of fees and costs was warranted
and calculated a proposed reasonable award. First, the R&R found that all agree (as
does the undersigned) that Canter had some success on the merits by obtaining a
remand order. (Doc. 125, #2859). The R&R then found that four of the five factors
weighed in favor of an award: (1) BCBSMA was sufficiently culpable for the denial of
benefits because it failed adequately to explain what medical evidence was necessary
to process Canter’s claim, and it refused to process an internal appeal Canter sought,
thereby preventing him from proving his entitlement to benefits, (id. at #2859–60);
(2) BCBSMA never argued it could not pay an award, (id. at #2860); (3) BCBSMA’s

relative culpability for not complying with the Plan meant a reasonable award of fees
would deter future misconduct in administering ERISA plans, (id. at #2860–61); and
(4) BCBSMA’s arguments against remand were roundly rejected, which means its
legal positions lacked merit relative to Canter’s, (id. at #2861). Given these findings
that nearly all the factors weighed in favor of an award, the R&R concluded an award
was merited. (Id. at #2862).
Turning to the reasonableness of the award, the R&R found that the proposed

billing rate of $490 per hour was reasonable for ERISA attorneys like Canter’s
counsel. (Id.). And the Magistrate Judge concluded that while most of the line items
for which Canter’s counsel sought fees were reasonable, he should not recover for the
43.9 hours expended on a motion to compel discovery responses for the same reasons
that led the Court (via the then-assigned judge) to deny his prior request for fees for
that motion. (Id. at #2863 (citing Doc. 75); see Doc. 76). Finally, the Magistrate Judge

noted she anticipated denying any request for fees related to the preparation and
filing of Canter’s post-remand motions (though no such request had been made), given
the R&R concluded Canter’s arguments lacked merit. (Doc. 125, #2863–64, 2864 n.3
(acknowledging that Canter filed his fee motion before his post-remand motions but
noting that any fees incurred to file such motions “would not be deemed compensable
in the event Canter seeks a further award of attorney fees”)).
Both parties objected in part.
Canter objected only to the extent that the R&R prejudged whether he would
merit an award of fees for his post-remand motions since no such request had yet

been made. (Doc. 128, #2891–93). Canter’s objection is well-taken given the Court
generally should not rule on matters not properly presented by the parties (subject to
narrow exceptions)—the party-presentation principle. United States v. Sineneng-
Smith, 590 U.S. 371, 375–77 (2020). So the Court does not opine on whether a motion
for fees related to the post-remand motions would or would not merit an award of fees
and costs. The issue was simply not presented to the Court for review at this time.
For its part, BCBSMA objected but only as to whether any fee award is proper

here, not to the reasonableness of the R&R’s recommendation as to the amount or to
the costs. (Doc. 129, #2899). According to BCBSMA, the Magistrate Judge erred in
finding that three of the four factors as to which there was a dispute weighed in favor
of an award of fees and costs here. (Id.). Specifically, BCBSMA disagrees that it
engaged in culpable conduct, that an award of fees here would have a deterrent effect,
and that its arguments were meritless. (Id.). Take each in turn.

1. BCBSMA’s Culpability
Start with BCBSMA’s culpability. As this Court canvassed in its prior Opinion,
BCBSMA’s behavior in reviewing Canter’s claim left much to be desired. In denying
Canter’s claim for lack of evidence, BCBSMA never explained what evidence was
missing from Canter’s records that would permit him to perfect that claim. (Doc. 100,
#2575–76). BCBSMA never even informed Canter what evidence it had considered,
thereby leaving Canter in the dark as to how he could push his claim forward. (Id. at
#2577–79). Moreover, the explanation BCBSMA offered for why the claim had to be
denied was fatally deficient. Rather than consider all factors listed in the Plan,

BCBSMA focused solely on the “InterQual criteria” to the exclusion of all other
potentially relevant evidence. (Id. at #2589–93). And even more concerning, BCBSMA
inappropriately limited its request to the provider for Canter’s medical records to the
date of the surgery itself, rather than asking for all medical evidence that led to the
surgery. (Id. at #2577–78).
Those deficiencies are glaring. BCBSMA’s consistent failure to provide Canter
any meaningful insight into the claims process and its disregard for the need to

evaluate all relevant evidence to assess a claimant’s right to make a claim under the
Plan were improper. Shelby Cnty. Health Care Corp. v. Majestic Star Casino, 581 F.3d
355, 377 (6th Cir. 2009) (holding that “[w]here a plan administrator engages in an
inadequate review of the beneficiary’s claim[,] … attorney fees are appropriate” and
noting that “engag[ing] in a selective review of the record” or “rel[ying] on selective
portions of the claimant’s medical records to justify its denial decision” constitute

examples of such improper, culpable behavior). Based on BCBSMA’s mishandling of
Canter’s claims from LSI’s submission to the initiation of this suit, the Court agrees
with and sees no error in the Magistrate Judge’s finding that BCBSMA is culpable
for the denial of benefits. So the first factor supports a fee award here.
BCBSMA attempts to recharacterize its actions as simply a misreading of the
terms of the Plan documents and an “honest mistake in regard to the scope of the
records that it voluntarily requested concerning Plaintiff.” (Doc. 129, #2906, 2908–
09). This understates the impropriety of BCBSMA’s actions.
For starters, BCBSMA fails to explain why its fixation on only one set of factors

(the InterQual criteria) to the exclusion of all other relevant considerations in the
Plan during the review process should be viewed as a simple misinterpretation of the
Plan’s terms. (See Doc. 100, #2589–90). As the Court explained previously,
BCBSMA’s narrow analysis has no reasonable support in the Plan’s terms or even in
the InterQual Guidelines themselves, (id. at #2589–93). See Heffernan v. UNUM Life
Ins. Co. of Am., 101 F. App’x 99, 109 (6th Cir. 2004) (holding that a plan administrator
was culpable and fees were warranted because it “denied [a] claim based on a theory

that lacked legitimate foundation”). A cursory review of the relevant provisions shows
that the Plan requires BCBSMA to “us[e] all of the guidelines described below”—of
which there are six—not just the one relating to medical policies as BCBSMA did.
(Doc. 77-2, #1655). In other words, this was no mere misinterpretation. BCBSMA’s
analysis of what was in the record gave short shrift to all factors but the one most
convenient to its denial.

In addition, BCBSMA cannot shift the blame to Canter for its inadequate
request for Canter’s medical records or discount its responsibility by suggesting that
its selective review was the result of an honest mistake. BCBSMA gave Canter zero
basis from which he could understand why his claim was denied, which means he had
no basis for knowing what evidence could have changed the decision. For that reason,
BCBSMA has no leg to stand on when it suggests Canter should have done a better
job of proving his claim, (Doc. 129, #2906), even assuming it is correct that it had no
duty to investigate the claims, but cf. McAlister v. Liberty Life Assurance Co. of
Boston, 647 F. App’x 539, 549–50 (6th Cir. 2016) (questioning whether a fiduciary has

a duty to investigate an ERISA claim, but not affirmatively rejecting it). Besides, once
BCBSMA took it upon itself to request the records, it acted unreasonably by
requesting Canter’s medical records only from the day of the surgery—in other words,
BCBSMA itself acted to keep the scope of the administrative record improperly
narrowed. Cf. Guest-Marcotte v. Life Ins. Co. of N. Am. (Guest-Marcotte II), 768 F.
App’x 357, 361–62 (6th Cir. 2019) (finding the plan administrator was culpable in
part because it rejected a claim based on the claimant’s failure to proffer “evidence

[the administrator] … itself declined to obtain”). Put simply, BCBSMA is largely, if
not solely, responsible for the lack of evidence. It kept Canter in the dark.
Given this overall pattern of misconduct in BCBSMA’s (mis)handling of
Canter’s claim, the Court sees no merit in its objections to the Magistrate Judge’s
finding that it was meaningfully and substantially culpable for the denial of benefits.
This first factor thus supports a fee award.

2. Deterrence
The third factor (i.e., the second disputed factor here) relates to whether a fee
award would have a “deterrent effect … on other plan administrators[, which
will] … likely [] have more significance in a case where the defendant is highly
culpable” than in a case in which he has made only “[h]onest mistakes.” Foltice v.
Guardsman Prods., Inc., 98 F.3d 933, 937 (6th Cir. 1996). But as explained above, see
supra Section C.1, BCBSMA’s behavior in handling Canter’s claim was plainly
improper. As a result, “[a]n award of fees in this case further confirms that insurers
must perform meaningful claim reviews”—namely, insurers should not withhold

necessary information from beneficiaries about what evidence is before the plan
administrator or what evidence was lacking for them to perfect their claims.
Niswonger v. PNC Bank Corp. & Affiliates Long Term Disability Plan, No. 3:10-cv-
377, 2011 WL 4543929, at *3 (S.D. Ohio Sept. 29, 2011).
While BCBSMA disputes this finding, it does so by reiterating its self-serving
and erroneous characterization of its handling of Canter’s claim as “result[ing] [from]
[] honest mistake[s].” (Doc. 129, #2910). As the Court already rejected this

characterization of what occurred above, see supra Section C.1, the Court adopts its
prior reasons without the need to repeat them here. BCBSMA was highly culpable
for the denial of benefits, and an award of fees would provide meaningful deterrence
here. Hence, this factor also favors an award of fees.
3. Relative Merit

That leaves the last disputed factor—the relative merits of the parties’ legal
positions. The Court agrees with the Magistrate Judge that not only were Canter’s
arguments superior to BCBSMA’s, but there was little merit to the legal positions
BCBSMA staked out. (Doc. 125, #2861). In its prior Opinion and Order, the Court
found all BCBSMA’s merits arguments unavailing in large part because it “offer[ed]
no support for its argument[s]” by failing to identify “compelling caselaw” and by not
“directly confront[ing] the issue at hand.” (Doc. 100, #2577–78, 2584; see id. at #2576,
2581, 2592 (describing BCBSMA’s arguments variously as “unavailing,” “run[ning]
off the tracks,” and “do[ing] exactly” what the documents it cited did not permit). Such
is not the language used when resolving a close question, as BCBSMA contends. (See

Doc. 129, #2911). For this reason, BCBSMA cannot reasonably support its assertion
that the Court merely rejected its arguments, such that one should find its legal
positions “no more devoid of merit than that of any other losing litigant.” (Id. (quoting
Shelby Cnty., 581 F.3d at 378 (cleaned up))). BCBSMA’s contention ignores the fact
that the Court resoundingly rejected BCBSMA’s merits arguments as without
support. Namely, the Court finds that its legal positions while litigating this case had
little legal merit, so this last factor likewise supports an award of fees. Heffernan, 101

F. App’x at 109 (affirming an award of fees on the grounds that the plan administrator
“sought to defend [its] theory” “that lacked legitimate foundation” “with reference to
isolated snippets from the record”).
* * *
Altogether, the Court finds on its de novo review that four of the five factors a
court must consider when assessing whether to award fees weighs in favor of such an
award here, as recommended.16 (Doc. 125, #2862). And, as explained, BCBSMA’s

arguments to the contrary fail to persuade. So when it balances all relevant factors
(including that Carter’s suit here benefits only himself, which weighs against an
award), the Court finds that awarding fees and costs is proper. Heffernan, 101 F.
App’x at 109.

16 As a reminder, BCBSMA does not object to the R&R’s finding that it could pay an award
of fees. (Doc. 125, #2860). The Court does not disturb that finding.
That leaves only the question of reasonableness. But as the Court noted,
Canter did not object to the Magistrate Judge’s reduction of the hours requested
related to his prior discovery motion, and BCBSMA did not object to the

reasonableness of the award the Magistrate Judge calculated. So the Court reviews
the recommended award for clear error. Williams, 2023 WL 8824845, at *3. And the
Court sees none.
Canter’s attorney’s billing rate of $490 per hour is reasonable considering
similar rates have been awarded in other cases in this district. Schumacher v. AK
Steel Corp. Ret. Acc. Pension Plan (Schumacher II), 995 F. Supp. 2d 835, 845 (S.D.
Ohio 2014) (collecting cases with rates ranging from $250 to $500 per hour that were

justified by the seniority and experience of the attorneys). And with the removal of
the hours that Canter’s attorney spent on a motion to compel discovery that
previously resulted in a denial of a request for fees, (Doc. 76), the Court finds (after
its own review of Canter’s counsel’s itemized list of hours, (Doc. 103-1, #2678–89)) no
clear error in the Magistrate Judge’s assessment—informed by her firsthand
knowledge of the case’s development and the record—that 417.9 hours expended over

nearly five years of litigation is reasonable. (Doc. 125, #2864). The Ne. Ohio Coal. for
the Homeless v. Husted, 831 F.3d 686, 703 (6th Cir. 2016) (“The court can rely on
estimates based on its overall sense of a suit” to determine what constitutes a
reasonable number of hours expended. (cleaned up)). So the Court will award Canter
$204,771 in fees.
Similarly, the Court sees no clear error in the R&R’s recommendation that the
Court award Canter all his requested costs (a point that no one contests), (Doc. 125,
#2864)—$622.75 is quite a reasonable amount after five years of litigation. So the

Court will also award Canter $622.75 in costs.
Accordingly, the Court GRANTS IN PART AND DENIES IN PART Canter’s
motion for fees. (Doc. 103).17
CONCLUSION
As detailed above, the Court ADOPTS IN PART AND REJECTS IN PART
the R&R, (Doc. 125); SUSTAINS IN PART AND OVERRULES IN PART Canter’s

Objections (Doc. 128); OVERRULES BCBSMA’s Objections (Doc. 129); GRANTS
Canter’s Motion for Permission to File Reply to BCBSMA’s Response to Order (Doc.
136); GRANTS Canter’s Amended Motion to Reopen and Return Case to Active
Docket (Doc. 111); GRANTS IN PART AND DENIES IN PART Canter’s Amended
Second Motion for Judgment on the Record after Remand (Doc. 112); GRANTS IN
PART AND DENIES IN PART Canter’s Motion for Award of Attorney’s Fees for

Remand (Doc. 103); and DENIES AS MOOT Canter’s duplicative motion for fees,
(Doc. 101).
Accordingly, the Court DIRECTS the Clerk to REOPEN this matter. The
Court AWARDS Canter $100,289.01 ($15,267.01 of which is for an award of
prejudgment interest) on Count II of the Complaint as well as $204,771 in

17 Because Canter filed two identical motions for fees (Docs. 101, 103), the Court agrees with
the Magistrate Judge that the duplicative motion for fees should be denied as moot, (see Doc.
125, #2864), given the matter is resolved by disposing of its carbon copy.
fees and $622.75 in costs. Because Canter has already been paid $85,022,
BCBSMA owes Canter $15,267.01 plus $204,771 in fees and $622.75 in costs,
for a total of $220,660.76. As is required by 28 U.S.C. § 1961, the Court also
AWARDS Canter post-judgment interest on the entirety of the judgment currently
outstanding (prejudgment interest, fees, and costs), which shall run from the date of
the entry of the Court’s judgment. Caffey v. Unum Ins. Co., 302 F.3d 576, 586-91 (6th
Cir. 2002). The Court DIRECTS the Clerk to enter judgment for that amount against
BCBSMA and for Canter and to TERMINATE this matter on its docket.
SO ORDERED.
\
May 24, 2024
DATE DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

38

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10384679. Public record. Not legal advice.