Killian v. Concert Health Plan

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1112

JAMES E. K ILLIAN, as Independent Administrator

of the Estate of Susan M. Killian,

Plaintiff-Appellant,

v.

C ONCERT H EALTH P LAN, C ONCERT H EALTH P LAN

INSURANCE C OMPANY, R OYAL M ANAGEMENT

C ORPORATION H EALTH INSURANCE P LAN, and

R OYAL M ANAGEMENT C ORPORATION,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 4755—Marvin E. Aspen and Gary S. Feinerman, Judges.

A RGUED S EPTEMBER 29, 2011—D ECIDED A PRIL 19, 2012

Before R IPPLE, M ANION, and S YKES, Circuit Judges.

M ANION, Circuit Judge. After discovering that she

had lung cancer that had spread to her brain, Susan M.

Killian sought the advice of a doctor whom she trusted.

On that doctor’s recommendation, Susan underwent

2 No. 11-1112

aggressive treatment. Unfortunately, the treatment was

ultimately unsuccessful and she died a few months later.

By that point Susan’s husband, James E. Killian, had

received numerous medical bills for the cost of Susan’s

treatments. James submitted those medical bills to

Concert Health Plan Insurance Company, Susan’s health

insurance company, for reimbursement, but was denied

coverage on most of the expenses because the provider

that the Killians had used was not covered by Susan’s

insurance plan network. James ultimately filed suit,

seeking benefits for incurred medical expenses, relief for

a breach of fiduciary duty, and statutory damages for

failure to produce plan documents. At the summary

judgment stage of the case, the district court dismissed

James’s denial-of-benefits and breach-of-fiduciary-duty

claims, but awarded him minimal statutory damages

against the health plan administrator. James has ap-

pealed. We hold that the district court properly granted

summary judgment on James’s denial-of-benefits and

breach-of-fiduciary-duty claims, but incorrectly cal-

culated James’s statutory damages award. We therefore

affirm in part and remand in part, with instructions

outlined below.

I.

Susan Killian’s employer, Royal Management Corpora-

tion, entered into an agreement with Concert Health

Plan Insurance Company to provide group health insur-

No. 11-1112 3

ance coverage to all of Royal Management’s employees.1

This agreement became effective on July 1, 2005. Under

the agreement, Royal Management was named the plan

administrator for the Royal Management Corporation

Health Insurance Plan (the “Royal Plan”). Concert was

named the claims review administrator, a title that in-

cludes the “full and exclusive discretionary authority to:

(1) interpret [Royal Plan] provisions; (2) make deci-

sions regarding eligibility for coverage and benefits; and

(3) resolve factual questions relating to coverage and

benefits.” Concert was also listed as the Employee Re-

tirement Income Security Act (“ERISA”) claims review

fiduciary.

The Royal Plan offered three different options from

which employees could choose. Susan enrolled in the

Royal Plan and selected insurance coverage option

“SO35.” All three Royal Plan options afforded partici-

pants access to lower-cost medical services by health

care providers that were deemed to be within a given

network—namely, providers with whom Concert had

1

A not-for-profit corporation named Concert Health Plan

provides administrative services for health plans issued by

Concert Health Plan Insurance Company. James Killian named

both of these entities as defendants; however, the district court

dismissed Concert Health Plan from this suit with prejudice

because James “failed to come forward with specific facts

sufficient to raise a genuine question as to [Concert Health

Plan’s] involvement.” James does not appeal this decision;

therefore, our use of “Concert” in this opinion will refer only

to Concert Health Plan Insurance Company and we will not

discuss Concert Health Plan’s involvement further.

4 No. 11-1112

negotiated for lower fees. The SO35 option that Susan

selected was included as part of the PHCS Open Access

network of service providers. In documentation re-

ceived after enrolling in the Royal Plan, employees—

including Susan—were cautioned that, “to avoid

reduced benefit payments, obtain Your medical care

from SELECT providers whenever possible.” Additionally,

employees were admonished that, “[t]o confirm that

Your Hospital, Qualified Treatment Facility, Qualified

Practitioner or other provider is a CURRENT participant

in Your SELECT provider Network, You must call

the number listed on the back of Your medical identi-

fication card.”

By February 2006, Susan was suffering from persistent

headaches and a severe cold. Susan sought treatment

from her primary care physician who ordered a CT scan.

The CT scan’s results were haunting: Susan was diag-

nosed with lung cancer that had spread to her brain.

She was admitted to Delnor Community Hospital by

direction of her primary care physician; after five days,

she was told that her brain tumors were inoperable.

Desiring a second opinion, the Killians contacted

Rush University Hospital and Dr. Philip Bonomi to set up

an appointment. Susan was familiar with Dr. Bonomi

because he had treated Susan’s daughter several years

earlier. Besides their familiarity and apparent comfort

with Dr. Bonomi, the Killians had no other reason

for seeking him out.

Susan’s appointment with Dr. Bonomi was scheduled

for April 7, 2006. The Killians did not ask either Concert

No. 11-1112 5

or Royal Management about whether the treatment

provided by Dr. Bonomi or Rush University Hospital was

within the PHCS Open Access network of providers.

Indeed, James averred that neither he nor Susan

inquired about whether Susan’s treatment by Dr. Bonomi

or Rush University Hospital was in-network before

Susan’s appointment on April 7. Further, James testified

that Susan and he would have sought a second opinion

from Dr. Bonomi regardless of whether he was in the

PHCS Open Access network.

When the Killians arrived at Rush University Hospital

for Susan’s April 7 appointment, they first saw a neuro-

surgeon by the name of Dr. Louis Barnes, to whom

they had been referred by Dr. Bonomi. Dr. Barnes told

the Killians that one of Susan’s tumors had to be

removed immediately. According to James, “Dr. Barnes

stated [that] if he didn’t take the tumor [out of Susan’s

brain] she would be dead within five days.” At that point,

as Susan was being processed for admission to Rush

University Hospital, James called Concert at a toll-

free number he found on Susan’s medical insurance

identification card. There were three toll-free numbers

on Susan’s card: one to determine provider participa-

tion; one for customer service or utilization review; and

one for prescription drug service. James testified that

he first called the “top number” (the provider-participa-

tion number).

During this initial call there was some confusion

between James and the Concert representative regarding

the name of the hospital to which Susan was being ad-

6 No. 11-1112

mitted. James kept referring to St. Luke’s Hospital and

the representative was not aware of a hospital by that

name. (Apparently that was the name of the hospital

some years earlier.) She told James to call back later, but

then she told him to “go ahead with whatever had to

be done.” When he did call back he dialed a different

number—the customer service/utilization review num-

ber. Despite having dialed a different number, James

apparently reached a representative who knew of his

earlier confusion about the hospital’s name. James told

this second representative that “I’m trying to get con-

firmation that we are going to be—my wife is going to

be admitted to Rush.” That representative said,

apparently in jest, “Oh, you mean St. Luke’s.” After

chuckling with someone seated near her (presumably

another representative who was familiar with James’s

first phone call), the second representative said, “You

mean Rush Presbyterian.” James replied, “Oh, okay.

That is what they are calling it.” He then stated, “Susan

is going to be admitted,” to which the representative

responded, “Okay.” Importantly, during neither phone

call did James and the two Concert representatives

discuss whether Susan’s treatment at Rush University

Hospital by Dr. Barnes was within the PHCS Open

Access network of providers.

Shortly after she was admitted to Rush University

Hospital, Susan underwent surgery and was hospitalized

from April 7 to April 12. Following her discharge from

Rush University Hospital, Susan saw Dr. Bonomi “one

or two times” for outpatient care. In June 2006, acting

on orders from Dr. Bonomi, James again took Susan to

No. 11-1112 7

Rush University Hospital on suspicion that she might

have pneumonia. Susan was admitted and was hospital-

ized for nine days. After Susan was discharged, she

tried chemotherapy but could not tolerate the treatment.

Susan died in August 2006.

During the months Susan battled cancer, the Killians

received several Explanation-of-Benefit invoices from

Concert that detailed medical claims that Concert

would not cover because the treatment Susan received

was by out-of-network providers. These out-of-network

medical expenses totaled approximately $80,000. On

July 31, 2006, James wrote to Concert’s Claims Depart-

ment, explaining Susan’s dire health status and citing

provisions in her Certificate of Insurance that James

believed were inconsistent with Concert’s rejection of

Susan’s claims. Concert replied in two letters dated

September 19 and 20, 2006, reiterating that the

claims referenced in its Explanation-of-Benefits

invoices were out-of-network and, therefore, the

Killians were individually responsible for the maximum

allowable fee. James requested further review, which

was referred to Concert’s Appeals Committee. On Octo-

ber 25, 2006, the Committee issued a ruling largely af-

firming Concert’s denial of benefits; however, the Com-

mittee agreed to process one claim at the in-network

fee level because that claim was based on emer-

gency treatment for pneumonia that Susan received in

June 2006.

James Killian, acting in his capacity as the administrator

of Susan’s estate, filed suit in August 2007, in the Northern

8 No. 11-1112

District of Illinois, Eastern Division. James amended

his complaint twice, each time adding more parties and

causes of action. Ultimately, James alleged three viola-

tions of the ERISA, 29 U.S.C. §§ 1001, et seq.: (1) a denial-of-

benefits claim against the Royal Plan and Concert; (2) a

breach-of-fiduciary-duty claim against Royal Manage-

ment and Concert; and (3) a statutory-penalties claim

against Royal Management for failure to provide insur-

ance plan documents.2

This case was first assigned to District Judge Marvin E.

Aspen. At the close of discovery, both Royal Manage-

ment (for itself and for the Royal Plan) and Concert

moved for summary judgment on all of James Killian’s

claims. Judge Aspen granted Concert’s motion in its

entirety and granted Royal Management’s motion in

part. Judge Aspen stated that James’s denial-of-benefits

claim hinged on whether the communications James

received from Concert concerning the denial of Susan’s

claims “substantially complied” with ERISA require-

ments. Importantly, Judge Aspen noted that James

did not contest Concert’s denial of benefits on the

merits; “[t]hat is, [James] does not contest [Concert’s]

conclusion that no further benefits were payable because

the health care providers at issue were out of Susan’s

network.” Although he found that Concert’s notification

2

As explained in greater detail below, the statutory-penalties

claim was added to James’s second amended complaint

when Royal Management failed to comply with his docu-

ment request during discovery.

No. 11-1112 9

letters were technically deficient, Judge Aspen held that

they substantially complied with ERISA requirements

because they supplied James with Concert’s reason for

denying Susan’s claims, thereby allowing James to bring

this suit. Further, Judge Aspen noted that the only

remedy available to James would be to remand the

matter to Concert for further explanation of its denial

of benefits to Susan. And because James had never

argued that he could not comprehend Concert’s deci-

sion, that he was unable to challenge it, or that it was

wrong, Judge Aspen concluded that remanding the

matter to Concert would be a useless formality. Accord-

ingly, Judge Aspen granted summary judgment to

Concert and Royal Management on James’s denial-of-

benefits claim.

Judge Aspen also granted summary judgment to

Concert and Royal Management on James’s breach-of-

fiduciary-duty claims. In doing so, Judge Aspen

rejected two of James’s arguments, but the one most

relevant to this appeal is the argument that Concert and

Royal Management, as co-fiduciaries, had failed to

provide accurate information to Susan in the form of a

summary plan description (“SPD”)3 and a list of net-

work providers. Judge Aspen stated that under this cir-

3

ERISA provides that “a summary plan description of any

employee benefit plan shall be furnished to participants and

beneficiaries as provided in [29 U.S.C.] § 1024 . . . .” 29 U.S.C.

§ 1022(a). We will discuss further SPD requirements below, as

well as their bearing on this case.

10 No. 11-1112

cuit’s case law, a fiduciary’s failure to provide accurate

information is only cognizable under extraordinary

circumstances; namely, bad faith or active concealment

on the part of Concert and Royal Management, or detri-

mental reliance on his part. Because James failed to dem-

onstrate such extraordinary circumstances, Judge Aspen

found that summary judgment was appropriate.

But Judge Aspen refused to grant summary judgment

to Royal Management on James’s statutory-penalties

claim. Judge Aspen noted that the documents that

Royal Management had produced did not constitute a

valid SPD, and thus that James might be entitled to statu-

tory penalties. But because James had not yet moved

for summary judgment on that issue, Judge Aspen

ordered supplemental briefing on whether James was

entitled to statutory penalties both for Royal Manage-

ment’s failure to produce an SPD and for its failure to

produce a copy of the group policy.

Following Judge Aspen’s order, James immediately

filed a motion for reconsideration. In that motion,

James contended that the district court failed to take

into account our decision in Kenseth v. Dean Health Plan,

Inc., 610 F.3d 452 (7th Cir. 2010), as well as a case that was

then pending before the Supreme Court, Cigna Corporation

v. Amara, 131 S. Ct. 1866 (2011). James also specifically

protested the district court’s failure to address the fact

that he placed two phone calls to Concert on the day

Susan was admitted to Rush University Hospital and re-

ceived no warning that Rush University Hospital was

out-of-network. This, according to James, was a breach

No. 11-1112 11

of fiduciary duty. Judge Aspen distinguished Kenseth on

its facts and found Amara to be inapposite. Additionally,

Judge Aspen noted that James failed to raise the argu-

ment in his responsive memorandum that Concert

breached its fiduciary duty by failing to provide him

with information during the two phone calls on April 7,

2006, and, therefore, that the argument was waived.

After Judge Aspen issued his orders, the case was

transferred to Judge Gary S. Feinerman for resolution on

James’s statutory-penalties claim. Judge Feinerman dis-

posed of the case by ordering Royal Management to pay

$5,880 in statutory damages. James appeals the district

court’s grant of summary judgment on his denial-of-

benefits and breach-of-fiduciary-duty claims, as well as

the court’s calculation of his statutory damages award.

II.

We review the district court’s granting of summary

judgment de novo. Ruiz v. Cont’l Cas. Co., 400 F.3d 986, 989

(7th Cir. 2005). In doing so, we must construe all facts

and draw all inferences in favor of the nonmoving

party. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651,

653 (7th Cir. 2010). We will affirm if “the movant

shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). Additionally, we

review a district court’s statutory damages award under

29 U.S.C. § 1132(c) for an abuse of discretion. Fenster

v. Tepfer & Spitz, Ltd., 301 F.3d 851, 858 (7th Cir. 2002).

12 No. 11-1112

A. Denial-of-Benefits Claim

James contends that the district court erred in

granting both Royal Management’s (on behalf of the

Royal Plan) and Concert’s motions for summary judg-

ment on his denial-of-benefits claim. As we noted above,

this claim stems from Concert’s denial of the Killians’

request to pay out-of-network medical expenses both

on initial review and by the Appeals Committee. Impor-

tantly, it is undisputed that Concert, as the fiduciary

and claims review administrator, had “full and exclusive

discretionary authority” to interpret the Royal Plan’s

provisions and make coverage and benefit decisions.

Thus, we review Concert’s decision to deny benefits

under the deferential arbitrary-and-capricious standard.

Hess v. Reg-Ellen Mach. Tool Corp., 423 F.3d 653, 658 (7th

Cir. 2005). Under this standard that is entitled to

great deference, “we cannot overturn a decision to deny

benefits unless it is ‘downright unreasonable.’ ” Ruiz, 400

F.3d at 991 (quoting Blickenstaff v. R.R. Donnelley & Sons

Co., 378 F.3d 669, 677 (7th Cir. 2004)). Therefore, the

“ ‘insurer’s decision prevails if it has rational support in the

record.’ ” Semien v. Life Ins. Co. of N. Am., 436 F.3d 805,

812 (7th Cir. 2006) (quoting Leipzig v. AIG Life Ins. Co., 362

F.3d 406, 409 (7th Cir. 2004)).

James argues that Concert’s decision was arbitrary

and capricious because there is nothing in the rec-

ord that establishes that Susan received treatment from

an out-of-network provider. Specifically, James com-

plains that the plan documents that he received from

the Royal Plan are contradictory and do not contain a

No. 11-1112 13

list of network providers. Therefore, James argues, Con-

cert’s decision to deny Susan’s claims lacked rational

support in the record.

James’s first argument—that he received plan docu-

mentation with contradictory information—focuses on

two documents in particular: a Certificate of Insurance

and an Employee Benefits Summary. The main issue,

James contends, is that the Certificate of Insurance and

the Employee Benefits Summary do not call Susan’s

plan by the same name. The Certificate of Insurance

refers to the plan as the “SELECT provider network,”

while the Employee Benefits Summary dubs the plan

the “PHCS Open Access” network. Given this contra-

dictory information, James questions how Concert could

discern whether Susan’s treatment at Rush University

Hospital was conducted by in- or out-of-network pro-

viders. In other words, James argues that this apparent

conflict means that Concert’s decision to deny Susan

benefits was not rationally related to the record.

There is no conflict. The Certificate of Insurance and

the Employee Benefits Summary do not refer to different

networks. A cursory reading of the Certificate of

Insurance clearly shows that the “SELECT provider

Network” referred to is not the name of a specific net-

work. Rather, that phrase alerts the insured to insert

the name of the provider network that the insured “se-

lected.” 4 The supporting documentation plainly shows

4

For example, the first sentence in the introductory “Notices”

section reads: “SELECT provider Organizations are networks of

(continued...)

14 No. 11-1112

that the network Susan selected was the PHCS Open

Access network. In the Certificate of Insurance packet

that the Killians had in their possession, Susan’s plan

code is clearly identified as SO35. Further, the Employee

Benefits Summary identifies Susan’s network as the

PHCS Open Access network and also lists—on the very

same page—the three different benefit plan options

that are available under that network. Susan’s plan

code, SO35, is listed as one of those plan options. And

most convincingly, Susan’s insurance card—the same

card from which James gleaned Concert’s customer

service telephone number before placing two calls on

April 7, 2006—clearly identifies her network as the

PHCS Open Access network while listing her group code

as SO35. Thus, when taken as a whole, the documenta-

tion shows that Concert could have readily discerned

which health plan Susan chose and to which network

she belonged at the time Concert made its decision to

deny her benefits.

Second, James argues that because there is no list of

providers in the record, Concert could not have made a

rational decision that Susan’s treatment by doctors at

4

(...continued)

Hospitals, Qualified Treatment Facilities, Qualified Practitio-

ners, and other providers that are contracted to furnish, at

negotiated fees, medical Services for Employees (and their

covered Dependents) of participating Employers.” There is

nothing in this sentence that points to a specific network

provider; it is obviously intended to act as a boilerplate ex-

planation of how the network-provider system works.

No. 11-1112 15

Rush University Hospital was out-of-network. It is true

that the record does not include a network-provider

list. Concert admits as much in its brief. Therefore,

James asks us to remand this issue for further develop-

ment of the record and a final determination. See Gallo

v. Amoco Corp., 102 F.3d 918, 923 (7th Cir. 1996), cert. denied,

521 U.S. 1129 (1997) (“The remedy when a court or

agency fails to make adequate findings or to explain

its grounds adequately is to send the case back to the

tribunal for further findings or explanation.”).

We will not remand, however, where doing so would

be a “useless formality.” Schleibaum v. Kmart Corp., 153

F.3d 496, 503 (7th Cir. 1998) (citing Wolfe v. J.C. Penney

Co., 710 F.2d 388, 394 (7th Cir. 1983)). Concert has con-

sistently maintained that Susan’s treatments were out-of-

network and James has never argued that Rush

University Hospital, Dr. Bonomi, or Dr. Barnes were

actually in Susan’s network. In fact, at oral argument

James’s counsel stated that, if this issue were remanded,

he “suspected” that the claims review administrator

would conclude that Susan’s treatment at Rush

University Hospital was out-of-network. Accordingly,

we affirm the district court’s holding that Concert’s

denial of benefits was not arbitrary and capricious.5

5

The dissent contends that, because “Mr. Killian now seeks

judicial review of [Concert’s] substantive determination,” we

must remand for a definitive finding that Susan’s providers

were actually out of network. But that merely begs the question

of whether such a remand is necessary. Again, James has never

(continued...)

16 No. 11-1112

B. Breach-of-Fiduciary-Duty Claim

James argues that Concert and Royal Management

breached their fiduciary duties in two ways: first, by not

providing Susan with an SPD; and second, by failing to

apprise James that Rush University Hospital was not in

Susan’s network despite James’s two phone calls to

Concert on April 7, 2006. In short, James alleges that

Concert and Royal Management breached their fiduciary

duties by failing to make required disclosures. See

Mondry v. Am. Family Mut. Ins. Co., 557 F.3d 781, 808 (7th

Cir. 2009) (“[W]hen a fiduciary fails to make the types of

disclosures expressly required by the statute, it has

breached its fiduciary duty to the plan beneficiary . . . .”).6

5

(...continued)

argued that Susan’s providers were actually in her network, and

his counsel admitted that any remand on the issue would likely

lead to an unfavorable outcome. If there were any likelihood

that Susan’s providers were actually in her network, there is

no doubt that James would have vigorously pressed that

argument. He has not done so. Nevertheless, because we are

remanding the case anyway (see section II.C below), we will

accommodate our dissenting colleague and direct both

counsel to submit a stipulation concerning whether Rush

University Hospital, Dr. Barnes, and Dr. Bonomi were

within Susan’s provider network. If counsel are not able to

agree on a conclusive stipulation, the district court should

resolve this issue on remand.

6

We have previously held that, “while there is a duty to

provide accurate information under ERISA, negligence in

(continued...)

No. 11-1112 17

At the outset, we note Judge Aspen’s holding that James

first raised one of the two arguments in support of his

breach-of-fiduciary-duty claim (namely, the argument

that Concert breached its fiduciary duty when its rep-

resentatives failed to apprise him that Rush University

Hospital was not in Susan’s network despite James’s

two phone calls to Concert on April 7, 2006) in his

motion for reconsideration. Although Judge Aspen

held that James waived this argument because he first

raised it in his motion for reconsideration, Judge Aspen

also went on to rule on the merits. On appeal, however,

Concert did not argue that James had waived the argu-

ment, and so it is arguable that Concert has now

waived any waiver argument that it might have had.

Therefore, we will bypass the waiver issue altogether

and will address both of James’s arguments only on

the merits.

ERISA requires a plan fiduciary to act “with the care,

skill, prudence, and diligence under the circumstances

then prevailing that a prudent man acting in a like

capacity and familiar with such matters would use in the

6

(...continued)

fulfilling that duty is not actionable.” Vallone v. CNA Fin. Corp.,

375 F.3d 623, 642 (7th Cir. 2004). Under this rule, James’s claim

would likely fail because he has not shown that Concert and

Royal Management “purposefully intended to confuse plan

participants.” Id. But we have recently counseled that such

“broad statements . . . must not be read too broadly; although

negligent misrepresentations are not themselves actionable,

the failure to take reasonable steps to head off such misrep-

resentations can be actionable.” Kenseth, 610 F.3d at 471.

18 No. 11-1112

conduct of an enterprise of a like character and with

like aims.” 29 U.S.C. § 1104(a)(1)(B). To establish a breach

of fiduciary duty, James “must prove (1) that defendants

are plan fiduciaries; (2) that defendants breached their

fiduciary duties; and (3) that their breach caused some

harm to [him].” Kannapien v. Quaker Oats Co., 507 F.3d

629, 639 (7th Cir. 2007) (citations omitted). If James can

establish such a claim, he may then avail himself of

ERISA’s “award of equitable relief . . . to a plan participant

suing on h[is] own behalf for breach of fiduciary duty.”

Kenseth, 610 F.3d at 464 (citing Great-West Life &

Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002)).7

Concert and Royal Management have both conceded

that they were plan fiduciaries under ERISA. See 29 U.S.C.

7

In the past, we have held “that technical violations of

ERISA’s notification requirements, without a showing of bad

faith, active concealment, or detrimental reliance, do not state

a cause of action.” Andersen v. Chrysler Corp., 99 F.3d 846, 859

(7th Cir. 1996). But in a recent decision, the Supreme Court has

stated that ERISA’s allowance for equitable remedies may be

available in the absence of a fiduciary’s malfeasance, or a

beneficiary’s detrimental reliance. See Cigna Corporation v.

Amara, 131 S. Ct. 1866 (2011). In Amara the Court held that,

although the requisite showing of “actual harm may sometimes

consist of detrimental reliance, . . . it might also come from the

loss of a right protected by ERISA or its trust-law antecedents.”

Id. at 1881. This will undoubtedly change the landscape of our

ERISA equitable-remedies case law going forward. We need

not discuss the ramifications of Amara here, however, because

James fails to demonstrate that any breach on the part of

Concert and Royal Management actually caused his harm.

No. 11-1112 19

§§ 1002(21)(A) (defining a plan fiduciary), 1105(a)

(setting forth liability of a co-fiduciary). Additionally, it

is evident from the record that the Killians incurred

harm, namely, the approximately $80,000 in medical bills

owed by Susan’s estate. This then leaves us to ponder

the questions of whether Concert and Royal Manage-

ment breached a fiduciary duty owed to Susan, and, if

so, whether such a breach caused the harm.

We begin with James’s contention that Susan was

harmed by Concert and Royal Management’s failure

to provide an SPD. ERISA expressly requires a plan

administrator to furnish an SPD to each plan participant.

29 U.S.C. § 1021(a). Plan administrators must furnish

the SPD within 90 days after a participant enrolls in

the plan. Id. § 1024(b)(1)(A). Among other requirements,

SPDs for group health plans like the Royal Plan

must include “provisions governing the use of network

providers, the composition of the provider network, and

whether, and under what circumstances, coverage is

provided for out-of-network services . . . .” 29 C.F.R.

§ 2520.102-3(j)(3); see also 29 U.S.C. § 1022 (describing

the required disclosures of an SPD). Given these provi-

sions, it is obvious that SPDs play an important role

in informing ERISA beneficiaries about their benefits.

And as we have noted, “[t]he most important way in

which the fiduciary complies with its duty of care is

to provide accurate and complete written explanations

of the benefits available to plan participants and bene-

ficiaries.” Kenseth, 610 F.3d at 471. Concert and Royal

Management admit that they failed to provide Susan

with an SPD and, accordingly, they breached their fidu-

ciary duty to her.

20 No. 11-1112

Yet James must still show that this breach of fiduciary

duty caused Susan’s harm. Concert and Royal Manage-

ment claim their breach did not harm Susan because

she would have sought treatment from Dr. Bonomi,

Dr. Barnes, and Rush University Hospital even if she

had received an SPD. Clearly Susan made an appoint-

ment at Rush University Hospital and with Dr. Bonomi

several days before checking in at the hospital on

April 7, 2006. Dr. Bonomi referred her to Dr. Barnes who

quickly diagnosed a death-threatening brain tumor and

operated on her soon thereafter. As noted earlier, James

concedes that he and Susan would have sought a

second opinion from Dr. Bonomi regardless of whether

he was in Susan’s network. Further, he concedes that

he made the appointment and checked in at Rush Uni-

versity Hospital without first attempting to determine

whether that facility was in Susan’s network. Based on

this record, a reasonable fact finder could only conclude

that James and Susan would have sought treatment

from the doctors at Rush University Hospital regardless

of whether Susan had been issued an SPD. Thus, James

has not created a triable issue of fact over whether

Concert and Royal Management’s failure to provide an

SPD caused his harm.

James next argues that he was harmed as a result of

his reliance on the two phone conversations he had with

Concert representatives on April 7, 2006. Specifically,

James contends that the failure of the Concert representa-

tives to tell him that Rush University Hospital was out

of Susan’s network caused his harm. For the purposes

of this appeal, we are assuming that James did not

No. 11-1112 21

waive this argument, yet he still cannot succeed on the

merits.

The district court concluded that James called Concert

only to report that Susan was being admitted to Rush

University Hospital—not to confirm coverage. James

disputes this conclusion on appeal, pointing to his testi-

mony wherein he avers that he called two different toll-

free numbers on Susan’s insurance card. Because one of

the numbers listed on Susan’s card is a number used to

determine a provider’s network participation, James

argues that a fact finder could infer that he called to

confirm that Rush University Hospital was a member of

Susan’s network.

James attempts to bolster his argument by pointing

to Kenseth, where the plaintiff called his insurance com-

pany to confirm coverage before undergoing surgery,

was given verbal approval by the company’s representa-

tive, and yet was subsequently denied coverage. Kenseth,

610 F.3d at 459-60. In that case, we stated that, “by sup-

plying participants and beneficiaries with plan docu-

ments that are silent or ambiguous on a recurring topic,

the fiduciary exposes itself to liability for the mistakes

that plan representatives might make in answering ques-

tions on that subject.” Id. at 472. Accordingly, we reversed

the district court’s grant of summary judgment on the

plaintiff’s breach-of-fiduciary-duty claim. Id. at 483.

Here, James asks us to do likewise.

We recognize that a fiduciary’s duty to disclose is

broad. As we have stated elsewhere, “ ‘once an ERISA

beneficiary has requested information from an ERISA

22 No. 11-1112

fiduciary who is aware of the beneficiary’s status and

situation, the fiduciary has an obligation to convey com-

plete and accurate information material to the bene-

ficiary’s circumstance, even if that requires conveying infor-

mation about which the beneficiary did not specifically in-

quire.’ ” Kenseth, 610 F.3d at 466 (emphasis in original)

(quoting Gregg v. Transp. Workers of Am. Int’l, 343 F.3d 833,

845-46 (6th Cir. 2003)). Moreover, “[r]egardless of the

precision of his questions, once a beneficiary makes

known his predicament, the fiduciary ‘is under a duty

to communicate . . . all material facts in connection with

the transaction which the trustee knows or should

know.’ ” Id. at 467 (quoting Restatement (Second) of

Trusts § 173, cmt. D (1959)).

Implied in this standard, however, is the requirement

that the beneficiary at least put the fiduciary on notice

that he is in some sort of “predicament.” Thus, regardless

of which phone number James actually called, at bottom

his claim rests on the substance of his conversations

with the Concert representatives on April 7, 2006. Unlike

the plaintiff in Kenseth, who, as instructed by plan docu-

ments, called his insurance company and questioned

a customer service representative about whether a par-

ticular procedure was covered by his plan, James did not

ask Concert’s representatives about whether Rush Univer-

sity Hospital was in Susan’s network. Id. at 477.

As noted above, Susan was admonished by plan docu-

ments in her possession to call Concert to confirm that

any treatment she received, or health provider that

she visited, was covered by her plan. Neither of James’s

No. 11-1112 23

conversations with the Concert representatives can

be construed as seeking such confirmation. James’s

first conversation was highlighted by the Concert rep-

resentative’s alleged statement to “go ahead with

whatever had to be done.” But this statement was obvi-

ously not an authorization for Susan’s admission to

Rush University Hospital or for her subsequent treat-

ment. Significantly, at the point the representative made

the statement, she did not even know the name of the

hospital to which James was referring. And regardless of

what the representative might have meant by her state-

ment, it is obvious that James did not take her at her

word. As James testified at his deposition regarding

that first call, “we never determined anything.” That is

precisely why James called back later. Thus, if James

did not himself believe that the representative’s state-

ment was an authorization for Susan’s treatment, no

reasonable juror could construe the statement as an

authorization either.8

8

The dissent reflects that James’s statement that “we never

determined anything” might be construed as something he “has

come to realize in the years since this call,” that nothing

was resolved during the first phone call. (Dissent Op. at 51.)

This is something neither we nor a jury can infer. We may not—

nor may we allow a jury to—translate Killian’s thoughts based

on his statement made while testifying at his deposition

regarding what he believed at the time he spoke to the first

agent on April 7, 2006. Without an express statement that

shows that Killian has since come to believe that he and the

representative never determined anything, we must accept

(continued...)

24 No. 11-1112

James’s second conversation with Concert amounted

to nothing more than a notification that Susan had been

admitted to Rush University Hospital. He did not

ask any questions or communicate to the Concert rep-

resentative what kind of treatment Susan was about to

undergo or the doctor or doctors who would provide

that treatment. James admits that the statements he

made during the second call were brief and that he initi-

ated that conversation by dialing the customer ser-

vice/utilization review number—not the provider-partici-

pation number that he had previously dialed. If James

had indicated concern about whether Rush University

Hospital was in- or out-of-network, he could have

dialed the provider-participation number (as he had

done originally) and sought the requisite information

from a Concert representative. Or he could have ex-

pressed his concern to the second representative he

called and she could have switched him to the proper

source. He did neither.

James’s statements during his short conversations with

the Concert representatives do not trigger Concert’s

fiduciary duty. We would have to significantly embellish

the threadbare record before us to allow for a possible

finding that James put Concert on notice of his “predica-

ment.” The case law simply does not support a blanket

requirement that a fiduciary turn every vague exchange,

8

(...continued)

Killian’s testimony under oath as conveying what he believed

at the time the incident occurred.

No. 11-1112 25

such as the phone calls between James and Concert in

this case, into a quest to uncover some kind of harm

that might befall a beneficiary. Therefore, Concert did

not breach its fiduciary duty by failing to apprise him

that Susan’s treatment at Rush University Hospital was

not covered by her plan.

We also note that, at a more fundamental level, James’s

reliance on Kenseth undermines his claim. In that case,

we drew a distinction between instances when a fiduciary

“supplie[s] participants and beneficiaries with plan

documents that are silent or ambiguous on a recurring

topic,” and instances “when the plan documents are

clear and the fiduciary has exercised appropriate over-

sight over what its agents advise plan participants and

beneficiaries as to their rights under those documents.”

Id. at 472. In the former context, “the fiduciary exposes

itself to liability for the mistakes that plan representatives

might make in answering questions on the subject.” Id.

In the latter context, a fiduciary “will not be held liable

simply because a ministerial, non-fiduciary agent has

given incomplete or mistaken advice to an insured.” Id.

This case is an example of an instance where plan

documents are clear and the fiduciary has exercised ap-

propriate oversight over its agents. The plan documents

clearly and unambiguously state the name of Susan’s

network. Further, the plan documents are clear on both

the necessity of and means by which a beneficiary

can determine whether a provider is within his or her

network. Our dissenting colleague acknowledges as

much. (Dissent Op. at 42-43.) As noted above, Susan’s

26 No. 11-1112

Employee Benefits Summary, Certificate of Insurance,

and insurance card identified her network as the PHCS

Open Access network. Although she did not have a

provider list, those documents warned Susan that she

should seek treatment from her preferred providers “to

avoid reduced benefit payments.” And the phone

numbers on her insurance card gave her instructions on

how “[t]o determine [p]rovider participation.” Thus, the

Killians had available to them clear instructions by

which they could have determined whether Dr. Barnes,

Dr. Bonomi, or Rush University Hospital were within

the PHCS Open Access network.9

James has also failed to put forth any evidence that

Concert did not properly exercise oversight over its

agents. He argues only that the substance of the tele-

phone conversations that he had with the two Concert

representatives is sufficient to create an inference that

9

Moreover, Susan’s insurance card required her to precertify

“[n]on-emergency admissions . . . no less than 7 days prior to

admission.” Emergency admissions, conversely, “must be

certified within 48 hours.” The Killians followed neither of

these directions, despite clear instruction to the contrary. We

express no opinion on whether Susan’s treatment was an

emergency or a non-emergency because there is no evidence

supporting a determination one way or the other. We thus

respectfully disagree with our dissenting colleague that “a

reasonable trier of fact could conclude that Mr. Killian

believed [that Susan’s surgery] was an emergency proce-

dure for which he was not required to obtain precertifica-

tion seven days in advance.” (Dissent Op. at 52.)

No. 11-1112 27

the two Concert representatives should have alerted

him that Rush University Hospital was not in Susan’s

network. But there is no evidence in the record to

suggest that any such failure on the representatives’ part

was due to a lack of oversight by Concert.

Given these facts, this case is an example of the

instance, envisioned in Kenseth, “when the plan docu-

ments are clear and the fiduciary has exercised appro-

priate oversight over what its agents advise plan par-

ticipants and beneficiaries as to their rights under

those documents.” Id. Accordingly, Concert may not be

held liable for mistaken or incomplete advice rendered

by “ministerial, non-fiduciary agent[s].” Id. Here, James

did not receive any advice during his conversations

with the Concert representatives (or at least any advice

that caused him to act). To the extent that he is tempted

to argue that the first representative’s statement to “go

ahead with whatever had to be done” overcomes the

mistaken-or-incomplete-advice hurdle, we reject that

argument because, as we noted above, James himself

did not believe that the statement gave him authoriza-

tion for Susan’s subsequent treatments. In short, because

this case involved a set of clear, unambiguous plan docu-

ments, and James has not shown that he was given any

advice, let alone something more than “incomplete or

mistaken advice” from a “ministerial, non-fiduciary

agent,” Concert cannot be held liable for a breach of

fiduciary duty.

The failure of Royal Management and Concert to pro-

duce an SPD did not cause the Killians’ harm. Addition-

28 No. 11-1112

ally, we reject James’s argument that Concert breached

its fiduciary duty by failing to notify him during two

phone calls that Rush University Hospital was not in

Susan’s network because James did not give Concert

adequate notice of his predicament. Alternatively, that

argument fails because James failed to follow the clear

instructions of plan documents and has not shown that

he received any advice, let alone mistaken or incom-

plete advice, from Concert’s representatives. Therefore,

Concert did not breach its fiduciary duty and the

district court properly granted summary judgment on

this claim.

C. Statutory Penalties

ERISA requires a plan administrator to, “upon written

request of any participant or beneficiary, furnish a copy

of the latest updated summary plan description, and the

latest annual report, any terminal report, the bargaining

agreement, trust agreement, contract, or other instru-

ments under which the plan is established or operated.”

29 U.S.C. § 1024(b)(4). Further, ERISA requires an ad-

ministrator to comply with such a request within 30 days

or face statutory penalties. Id. § 1132(c)(1)(B). The penalty

may be as much as $110 for each day that the plan ad-

ministrator fails to produce the requested documenta-

tion. 29 C.F.R. § 2575.502c-1. Yet the decision of whether

to impose a statutory penalty and the amount by which

an administrator should be penalized is left to the discre-

tion of the district court. 29 U.S.C. § 1132(c)(1)(B); Ames

v. Am. Nat’l Can Co., 170 F.3d 751, 759-60 (7th Cir. 1999)

No. 11-1112 29

(“Fines under § 1132(c)(1) are not mandatory, even if

there has been a [statutory] violation. . . .”). As noted

above, we review an award of statutory penalties for an

abuse of discretion. Fenster, 301 F.3d at 858.

From the outset, James has maintained that Royal

Management has never provided Susan with an SPD or

a list of network providers. Moreover, James did not have

access to a copy of Susan’s group policy. Therefore, on

April 24, 2008—during the course of litigation—James’s

attorney made a formal request to Royal Management to

produce, inter alia, an SPD and a copy of any health plan

of which Susan was a member. 1 0 In response to James’s

production request, on May 5, 2008, Royal Management

produced a copy of the Certificate of Insurance and the

Employee Benefits Summary. James believed that these

productions did not satisfy the definition of an SPD

and a group policy plan and, therefore, that Royal Man-

agement failed to produce the documentation he

had requested within the ERISA-mandated 30 days.

Accordingly, on March 2, 2009, he filed his second

amended complaint that added a statutory-penalties

claim seeking an award of $110 per day “for the failure

to provide a [SPD] or other plan documents . . . .” Eventu-

ally, on January 7, 2010, Royal Management produced

a copy of the group policy but, to date, it has never pro-

duced an SPD.

10

Royal Management does not dispute that both an SPD and

a copy of a health plan are the types of documents that a

plan administrator is required to provide on request under

§ 1024(b)(4).

30 No. 11-1112

The district court consistently noted that James’s

claim for statutory penalties involved two separate

grounds: (1) Royal Management’s alleged failure to

produce an SPD; and (2) Royal Management’s alleged

failure to produce a copy of the group policy. Indeed, in

denying Royal Management’s motion to dismiss James’s

statutory-penalties claim, the district court (with Judge

Aspen presiding) noted that James’s claim rested on

Royal Management’s alleged failure to produce both an

SPD and a copy of the group policy. Later, after Royal

Management and Concert had moved for summary

judgment on all of James’s claims, the district court speci-

fically rejected Royal Management’s argument that its

production of the Certificate of Insurance and the Em-

ployee Benefits Summary satisfied James’s request for

an SPD. Accordingly, the district court held that Royal

Management had violated 29 U.S.C. § 1024(b)(4)’s re-

quirement to produce an SPD. The district court also

acknowledged that, although the parties did not brief

the issue, James had put forth a second statutory-

penalties claim based on Royal Management’s alleged

failure to produce a copy of the group policy. Thus, the

district court ordered supplemental briefing on the issue

of whether statutory penalties should be awarded

(1) for Royal Management’s failure to produce an SPD,

and (2) for Royal Management’s alleged failure to

produce a copy of the group policy.

Although James moved the district court to reconsider

its summary judgment order, he did not file a motion

for statutory penalties by the court’s supplemental

briefing deadline. Royal Management, however, filed a

No. 11-1112 31

Memorandum in Opposition to the Imposition of Any

Statutory Penalties by its deadline. In that brief, Royal

Management addressed only its alleged failure to pro-

duce an SPD—it did not discuss its alleged failure to

produce a copy of the group policy.1 1 After Royal Man-

agement filed its brief, James filed a Motion for Leave

to File Brief Instanter, arguing that he should be allowed

to submit a brief in support of his statutory-penalties

claims. The district court granted the motion. James’s

brief, filed on August 3, 2010, included arguments for

statutory penalties based on both Royal Management’s

failure to produce an SPD and its failure to produce a

copy of the group policy.

Shortly after James had filed his brief in support of his

statutory-penalties claims, this case was transferred to

Judge Gary S. Feinerman. On December 17, 2010, Judge

Feinerman issued an order awarding James statutory

damages based on Royal Management’s failure to produce

an SPD. That order only addressed James’s argument that

he was entitled to statutory damages because of Royal

Management’s failure to produce an SPD; it said nothing

11

On appeal, Royal Management advances the curious argu-

ment that James never moved for penalties on the basis of

Royal Management’s failure to produce a copy of the group

policy and, therefore, he has waived that issue. This is simply

inaccurate; James has consistently maintained two claims

for statutory penalties throughout this litigation. That Royal

Management addressed only one of James’s claims in its

opposition brief below does not affect James’s ability to

appeal the district court’s decision on his other claim.

32 No. 11-1112

about James’s claim based on Royal Management’s

failure to produce a copy of the group policy. Ultimately,

Judge Feinerman assessed statutory damages in the

amount of $10 per day for 588 days—from May 28, 2009

(the thirty-first day after April 28, 2008, the presumed

date of James’s request for an SPD), to January 7, 2010

(James’s suggested end date).

There are several issues with this formula. First, the

use of April 28, 2008, as the date of James’s request for

an SPD does not comport with the record. We believe

that the record clearly shows the actual request date to

be April 24, 2008, and therefore, on remand, the district

court should begin its calculations using that date. Second,

the district court used January 7, 2010, as the end date

because that is the date James had “suggested.” But that

date is based on an imprecise reading of James’s argu-

ments. James has consistently argued—including in his

supplemental brief in support of his statutory-penalties

claims—that he seeks statutory damages on the basis of

both Royal Management’s alleged failure to produce an

SPD and on its failure to produce a copy of the group

policy. Thus, James argued, he was due two separate

penalty awards: the first, based on the failure to produce

a copy of the group policy, from the thirty-first day after

his April 24, 2008, request, to January 7, 2010, the date

Royal Management produced the group policy; the

second, based on the failure to produce an SPD, from

the thirty-first day after his April 24, 2008, request, to the

date Judge Feinerman’s order was issued because Royal

Management never produced an SPD. The district court

thus improperly calculated the end date by conflating the

No. 11-1112 33

two claims and tying James’s January 7, 2010, requested

end date for the group-policy claim to James’s SPD claim.

Third, and finally, the district court did not mention

James’s statutory-penalties claim based on Royal Manage-

ment’s alleged failure to provide a copy of the group

policy. As we noted above, the district court has discre-

tion in the first instance to decide whether to assess

statutory penalties for a particular infraction at all and,

if so, how much to assess. But the district court may not

overlook a party’s statutory-penalties claim that has

been made consistently throughout the course of litiga-

tion. We have held that a district court abuses its

discretion when it fails to consider an essential factor.

Powell v. AT&T Commc’ns, Inc., 938 F.2d 823, 825 (7th Cir.

1991). The district court failed to consider an essential

factor by overlooking one of James’s statutory-penalties

claims; therefore, we remand for further consideration

and recalculation.

III.

James Killian failed to demonstrate that Concert’s

decision to deny Susan benefits for costs incurred out-of-

network was not rationally related to the record. Further,

although there is no list of network providers in the

record, the district court did not err in refusing to remand

the case for a determination of whether Rush University

Hospital, Dr. Bonomi, and Dr. Barnes were in Susan’s

network because doing so would have been a useless

formality. Nevertheless, because we are remanding this

case anyway, we direct both counsel to submit a stipula-

34 No. 11-1112

tion concerning whether Rush University Hospital,

Dr. Barnes, and Dr. Bonomi were within Susan’s provider

network. If counsel are not able to agree on a conclusive

stipulation, the district court should resolve this issue

on remand.

James also failed to show that Royal Management and

Concert caused his harm when they breached their fidu-

ciary duty by failing to provide him and Susan with an

SPD. Further, we reject James’s argument that Concert

breached its fiduciary duty by failing to inform him

that Susan’s treatment at Rush University Hospital was

out-of-network because James did not provide Concert’s

representatives with adequate notice that he was con-

cerned about the providers’ network status. Alternatively,

because James and Susan failed to follow clear instruc-

tions contained in the plan documents and because

James has not shown that he received any advice, let

alone mistaken or incomplete advice from the Concert

representatives, Concert may not be held liable for a

breach of fiduciary duty. Therefore, the district court

properly granted summary judgment in favor of Royal

Management and Concert on James’s denial-of-benefits

and breach-of-fiduciary-duty claims.

Because the district court improperly conflated James’s

statutory-penalties claims and failed to address one of

his arguments, however, we reverse its grant of summary

judgment against Royal Management and remand for

further proceedings. We will not vacate the $5,880 al-

ready awarded by the district court and paid to James

by Royal Management; rather, we leave it to the district

No. 11-1112 35

court to take that award into account when conducting

its analysis and recalculation on remand. We express

no opinion on the appropriate sanction, if any. For these

reasons, we A FFIRM in part, R EVERSE in part, and R EMAND

for further proceedings consistent with this opinion.

R IPPLE, Circuit Judge, concurring in part and dissenting

in part. I join the majority’s resolution of Mr. Killian’s

claim for statutory penalties, but I am unable to join the

majority’s resolution of the remaining claims. Therefore,

with great respect for the opinion of my colleagues,

I concur in part and dissent in part.

A.

Mr. Killian claims that Mrs. Killian was entitled to

benefits under the Royal Management Corporation

Health Insurance Plan (the “Plan”). As the majority

explains, we review a fiduciary’s decision to deny

benefits under the abuse of discretion standard where,

as here, the plan documents give the “fiduciary discre-

tionary authority to determine eligibility for benefits

or to construe the terms of the plan.” Firestone Tire & Rub-

ber Co. v. Bruch, 489 U.S. 101, 115 (1989). We have

equated this standard with arbitrary-and-capricious

36 No. 11-1112

review. Jackman Fin. Corp. v. Humana Ins. Co., 641 F.3d

860, 864 (7th Cir. 2011). A fiduciary abuses its discretion

if its determination lacks “rational support in the rec-

ord.” Carter v. Pension Plan of A. Finkl & Sons Co. for

Eligible Office Emps., 654 F.3d 719, 725 (7th Cir. 2011).

Mr. Killian argues that Concert Health Plan Insurance

Company (“CHPIC”), the Plan’s administrator for claims

determinations and its ERISA claims review fiduciary,

abused its discretion in two ways. He first asserts that

CHPIC abused its discretion by determining that

Mrs. Killian belonged to the PHCS Open Access network.

He then claims that there is no rational support in the

record for CHPIC’s conclusion that Mrs. Killian’s pro-

viders were out-of-network, no matter how we charac-

terize the network to which Mrs. Killian belonged.1

1

As the majority explains, the district court did not address

this later claim because it did not understand Mr. Killian to be

“argu[ing] that CHPIC’s decision was arbitrary or capricious

on its merits.” R.289 at 14 n.15. However, in opposing CHPIC’s

first motion for summary judgment, Mr. Killian argued that

CHPIC “has not presented any admissible evidence to sup-

port” its assertion that Mrs. Killian’s providers were not in

the PHCS Open Access network. R.86 at 12 (emphasis in

original). He raised the same contention in opposition to

CHPIC’s second motion for summary judgment. See R.263 at 8-

9 (“CHPIC has submitted no evidence that Rush University,

for example, is not part of the . . . PHCS (Open Access)

network . . . .”). He reiterated this point in his motion for

reconsideration. R.290 at 9. It is therefore clear that Mr. Killian

raised this claim adequately.

No. 11-1112 37

I agree with my colleagues that CHPIC did not abuse its

discretion in concluding that Mrs. Killian belonged to the

PHCS Open Access network, and I join the majority’s

analysis of that issue without reservation. However,

I cannot agree with the majority’s determination that

there was rational support in the record for CHPIC’s

determination that the providers in question were

out-of-network. The majority acknowledges that there

is no evidence in the record indicating whether these

providers were part of the PHCS Open Access network.

It follows that there is no rational support—indeed, there

is not any support—in the record for CHPIC’s conclu-

sion that the providers were out of Mrs. Killian’s net-

work. We simply lack the record evidence necessary

to address the question. I therefore favor remanding the

issue to the district court so that CHPIC might supple-

ment the record with the evidence it relied upon in con-

cluding that the providers were out-of-network. CHPIC

itself has consented to such a remand. See CHPIC Br.

12. I see no reason why we should not take it up on

this offer.

Although my colleagues question whether such a

remand is necessary, they permit one to accommodate

my views. I am grateful for this accommodation and, in

the remainder of this section, shall set forth the reason

why I believe such a remand is appropriate.

The majority takes the view that we need not remand

this claim because doing so would be a “useless formal-

ity.” See Schleibaum v. Kmart Corp., 153 F.3d 496, 503

(7th Cir. 1998). I do not believe this principle has any

38 No. 11-1112

application to the issue at hand. When the adequacy of

an administrator’s denial letter is at issue, see 29 U.S.C.

§ 1133, the only remedy generally available is a remand

to the administrator for a more substantial explanation.

Schleibaum, 153 F.3d at 503. Such a remand is not

required, however, if it would be a “useless formality.”

Id. Here, the issue is not whether CHPIC adequately

informed Mr. Killian of its reasons for denying

Mrs. Killian’s claim, but whether CHPIC’s underlying

factual determination has rational support in the rec-

ord. 2 Mr. Killian does not contend that CHPIC failed to

include certain required information in its denial letter;

rather, he seeks a determination that the decision itself

was arbitrary and capricious and that he is therefore

entitled to benefits under 29 U.S.C. § 1132(a)(1)(B).3

This distinction is significant. ERISA’s specific notifica-

tion requirements are designed to ensure that any benefi-

2

Although Mr. Killian did challenge the adequacy of CHPIC’s

denial letters in the district court, summary judgment was

entered in favor of CHPIC on this claim. R.289 at 14-21.

Mr. Killian has not appealed this determination, and it is

accordingly not before us.

3

The majority relies on Mr. Killian’s counsel’s statement that

he “suspected” that CHPIC would determine that the pro-

viders were out-of-network, if the matter were remanded to

it. Even if ERISA required that the matter be remanded to

CHPIC for further explanation, and even if CHPIC deter-

mined that the providers were out-of-network, as Mr. Killian’s

counsel suspects it would, Mr. Killian then would be entitled

to challenge that determination as an abuse of discretion and

to seek benefits under 29 U.S.C. § 1132(a)(1)(B).

No. 11-1112 39

ciary whose claim is denied has “an explanation of the

denial of benefits that is adequate to ensure meaning-

ful review of that denial” in further administrative pro-

ceedings and in federal court. Halpin v. W.W. Grainger,

Inc., 962 F.2d 685, 689 (7th Cir. 1992). Mr. Killian now

seeks judicial review of CHPIC’s substantive determina-

tion. That review focuses on whether CHPIC had some

rational support for its conclusion. If the matter is as

simple as CHPIC suggests, the district court should be

able to resolve this issue with ease on remand.

B.

Mr. Killian also submits that Royal Management Corpo-

ration (“RMC”) and CHPIC breached their fiduciary

duties by failing to provide Mrs. Killian with a summary

plan description (“SPD”) and by failing to inform him

that Mrs. Killian’s providers were out-of-network during

telephone conversations on April 7, 2006, respectively.

While I rely on reasons different from those articulated

by my colleagues, I agree that summary judgment was

appropriate on the SPD issue. I believe, however, that

we must remand the issue of the adequacy of CHPIC’s

information on the status of Mrs. Killian’s providers.

I shall discuss each of these issues in the following sub-

sections.

1.

CHPIC and RMC are both fiduciaries under ERISA.

Consequently, in fulfilling their duties to Mrs. Killian

and other plan participants they must

40 No. 11-1112

discharge [their] duties . . . solely in the interest of

the participants and beneficiaries and . . . with the

care, skill, prudence, and diligence under the

circumstances then prevailing that a prudent man

acting in a like capacity and familiar with such

matters would use in the conduct of an enterprise

of a like character and with like aims.

29 U.S.C. § 1104(a)(1)(B). These duties are analogous to

those of loyalty and care that are imposed upon a trustee

under the common law. See Kenseth v. Dean Health Plan,

Inc., 610 F.3d 452, 466 (7th Cir. 2010). A beneficiary is

entitled to relief for a breach of fiduciary duty if he

proves “(1) that the defendant is a plan fiduciary; (2) that

the defendant breached its fiduciary duty; and (3) that

the breach resulted in harm to the plaintiff.” Id. at 464.

2.

Mr. Killian claims that RMC breached its fiduciary

duty to Mrs. Killian by failing to provide her with an

SPD, as required by 29 U.S.C. § 1021.4 By regulation, each

SPD must contain “a description of . . . the composition

of the provider network.” 29 C.F.R. § 2520.102-3(j)(3).

We have explained that a fiduciary breaches its duty

if it “fails to make the types of disclosures expressly

4

The record indicates that RMC was the Plan’s administrator.

R.259-3 at 77. This designation brings with it the obligation

of furnishing an SPD to the Plan’s participants. See 29 U.S.C.

§ 1021(a).

No. 11-1112 41

required by the statute.” Mondry v. Am. Family Mut. Ins.

Co., 557 F.3d 781, 808 (7th Cir. 2009). The district court

determined properly that Mrs. Killian never received an

ERISA-compliant SPD. I therefore agree with the

majority’s conclusion that RMC breached its fiduciary

duty to Mrs. Killian in this regard. I also agree that

the record does not support a conclusion that the

Killians were harmed by this failure. However, my

analysis of the causation question differs from that of

the majority.

The majority concludes that RMC’s failure to produce

an SPD did not harm Mrs. Killian by relying heavily on

Mr. Killian’s testimony that his wife would have

sought a second opinion from Dr. Bonami “no matter

what.” R.253 at 138-39. The Killians’ admission would

preclude them from arguing that the absence of an SPD

caused them to seek a second opinion from an out-of-

network provider because they admitted that they would

do so regardless of the physicians’ network status. How-

ever, a reasonable trier of fact still could conclude that

Mrs. Killian would not have acquiesced to costly surgery

by the providers if she had known that the providers

were not in her network. Indeed, as I shall explain in

further detail below, a reasonable trier of fact could

conclude that Mr. Killian attempted to determine the

surgery providers’ network status shortly after learning

that his wife required this prompt brain surgery.

That Mrs. Killian was admitted to the hospital for this

unexpected procedure before Mr. Killian contacted

CHPIC does not preclude the distinct possibility that

Mrs. Killian would have considered having another

42 No. 11-1112

provider perform this unexpected surgery once she

and Mr. Killian had been informed adequately that the

contemplated providers were outside the network. Nota-

bly, Mr. Killian called the insurance company before

the surgery, indicating that the Killians were concerned

about whether the surgery would be covered by

Mrs. Killian’s insurance. Consequently, I cannot join the

majority’s analysis on this point.

I nevertheless believe that the majority’s result on

this point should be sustained. Mr. Killian asserts that

his wife incurred nearly $80,000 in out-of-network

medical bills because RMC failed to provide Mrs. Killian

with an SPD, which would have provided her with infor-

mation about how she could ascertain that a certain

provider was within the network. The record does not

support this assertion. Mrs. Killian’s insurance card

stated that she should call a specific number “to

determine Provider participation.” R.82-7 at 2. Mr. Killian

knew that he could call this number to determine a pro-

vider’s network status before Mrs. Killian became ill.

R.253 at 31-32. Furthermore, Mrs. Killian received an

“Enrollment Package” instructing her in multiple places

to call the same number that was listed on her insurance

card to ensure that a provider is in-network. See R.259-5

at 8 (“Please always confirm with the network that the

provider is still participating at the location you

have chosen.”); id. at 10 (“The most accurate, up to date

information can be found by calling the CHP dedicated

No. 11-1112 43

line . . . .” (emphasis in original)).5 There is, therefore, no

evidence that Mrs. Killian incurred these medical bills

because she did not know how to determine whether

they were in her network.

3.

Mr. Killian also claims that CHPIC breached its

fiduciary duty to Mrs. Killian when it failed to inform

him that the providers at Rush University Medical

Center (“Rush”) were out of Mrs. Killian’s network during

two phone calls on April 7, 2006. The majority opinion

suggests that Mr. Killian may have waived this claim

and then rejects the claim on the merits. In my view,

CHPIC has waived this possible waiver, and Mr. Killian

is entitled to further consideration of this claim before

the district court.

a.

The majority notes that Mr. Killian may have waived

any argument premised on these phone calls by failing to

raise the issue in opposition to CHPIC’s motion for sum-

mary judgment. I agree that Mr. Killian’s responsive

memorandum contains no discussion of this claim.

5

Madonna Corbett, RMC’s Human Resources Director,

explained that RMC’s business practice was to provide

new enrollees in the Plan with this information. See R.259-2.

44 No. 11-1112

See R.263.6

Ordinarily, a litigant who fails to raise an argument in

opposition to a properly raised motion for summary

judgment will not be permitted to raise that same argu-

ment thereafter, either in a motion for reconsidera-

tion or on appeal. See Publishers Res., Inc. v. Walker-Davis

Publ’ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985). However,

a party waives the waiver by failing to assert it in this

6

Mr. Killian’s complaint does contain sufficient allegations to

put CHPIC on notice of the claim. For instance, Mr. Killian

alleged that he

called Concert Health Plan Insurance Company to

confirm that Rush University was a network provider

under the Concert Health Plan (or Royal Management

Corp. Health Insurance Plan). Concert Health Plan

Insurance Company informed Killian that Rush Uni-

versity was in the Concert Health Plan network or

failed to inform Killian Rush University was not in

the Concert Health Plan network. Killian relied on

these statements or omissions . . . .

R.134 at 10 (setting out RMC’s alleged breaches of fiduciary

duty); see also id. at 12 (incorporating this allegation against

CHPIC). The complaint does not spell out how CHPIC vio-

lated ERISA in these phone calls. However, a plaintiff need

not plead legal theories. Smith v. Med. Benefit Adm’rs

Grp., Inc., 639 F.3d 277, 283 n.2 (7th Cir. 2011). Mr. Killian

elaborated upon this claim in his motion for reconsidera-

tion. See R.290 at 1-5.

No. 11-1112 45

court.7 That circumstance is present in this case. In its

appellate brief, CHPIC asserts that Mr. Killian waived

various arguments by not raising them before the dis-

trict court.8 It says nothing, however, about Mr. Killian

waiving this particular argument. Instead, CHPIC argues

that “[n]o efforts were made by Plaintiff or his wife

to confirm whether any of these providers or treaters

were within the network.” CHPIC Br. 10. It further

claims that “nothing that [it] did or said in furnishing

the information caused specific harm to the Plaintiff.” Id.

By addressing the merits of this claim and failing

to assert the possible waiver, CHPIC has waived

Mr. Killian’s possible waiver.

The closest CHPIC comes to asserting this possible

waiver on appeal is in the portion of its brief titled “Issues

Presented for Review,” where it states: “It is unclear specifi-

cally how Plaintiff can present the issues presented in

his appellate brief, as the issues presented in his appeal

7

See, e.g., Westefer v. Snyder, 422 F.3d 570, 584 n.20 (7th Cir.

2005); Riemer v. Illinois Dep’t of Transp., 148 F.3d 800, 804-05

n.4 (7th Cir. 1998).

8

CHPIC contends that Mr. Killian waived any argument that

CHPIC’s benefit determination was not supported by rational

support in the record. CHPIC Br. 11; accord id. at 13. Although

CHPIC incorporates RMC’s arguments on the fiduciary duty

claims by reference, see id. at 13, RMC similarly fails to raise

the waiver noted by the majority. (While RMC does assert

that Mr. Killian waived certain aspects of his statutory-

penalties claim, RMC Br. 11, it says nothing about the waiver

at issue.)

46 No. 11-1112

were never developed or argued at the District Court

level.” CHPIC Br. 1-2. This statement is insufficient to

raise the waiver point for several reasons. First, it

appears only in the brief’s statement of the issues, not in

the section devoted to legal analysis. See Bob Willow

Motors, Inc. v. Gen. Motors Corp., 872 F.2d 788, 795 (7th Cir.

1989) (holding that an argument raised in one sentence

of a brief’s summary of argument with no citation to the

record or the governing law is waived); see also Am. Int’l

Enters., Inc. v. FDIC, 3 F.3d 1263, 1266 n.5 (9th Cir. 1993)

(holding arguments raised only in a “Statement of Is-

sues” are waived); cf. United States v. Kumpf, 483 F.3d

785, 791 (7th Cir. 2006) (explaining that a party does not

raise adequately an issue on appeal by merely listing it

in the statement of issues). Even if CHPIC could raise

adequately an argument by listing it in the issue state-

ment, it cannot do so with a one-sentence statement

devoid of any citation to the record or governing law.

See Clarett v. Roberts, 657 F.3d 664, 674 (7th Cir. 2011);

Perry v. Sullivan, 207 F.3d 379, 383 (7th Cir. 2000).9

For these reasons, I believe that it is appropriate to

9

Finally, to the extent CHPIC was referencing this precise

waiver with its general statement, its argument is built upon a

flawed premise. Although Mr. Killian may have raised this

claim inadequately in the district court, it is incorrect to claim

that this issue “w[as] never developed or argued at the District

Court level.” CHPIC Br. 1-2 (emphasis added). As explained

above, Mr. Killian described the factual basis for the claim in

his complaint and called it to the district court’s attention in

his motion for reconsideration.

No. 11-1112 47

address the merits of this claim despite the possible

waiver.

b.

With respect to the merits of this argument, we have

recognized that “ ‘once an ERISA beneficiary has re-

quested information from an ERISA fiduciary who is

aware of the beneficiary’s status and situation, the fidu-

ciary has an obligation to convey complete and accurate

information material to the beneficiary’s circumstance,

even if that requires conveying information about which the

beneficiary did not specifically inquire.’ ” Kenseth, 610 F.3d at

466 (alteration omitted) (emphasis in original) (quoting

Gregg v. Transp. Workers of Am. Int’l, 343 F.3d 833, 845-46

(6th Cir. 2003)). “Regardless of the precision of his ques-

tions, once a beneficiary makes known his predicament,

the fiduciary is ‘under a duty to communicate . . . all

material facts in connection with the transaction which

the trustee knows or should know.’ ” Id. at 467 (alteration

in original) (quoting Restatement (Second) of Trusts § 173,

cmt. d (1959)). If a fiduciary “suppl[ies] participants

and beneficiaries with plan documents that are silent

or ambiguous on a recurring topic, the fiduciary

exposes itself to liability for the mistakes that plan repre-

sentatives might make in answering questions on that

subject.” Id. at 472. If, however, “the plan documents

are clear and the fiduciary has exercised appropriate

oversight over what its agents advise plan participants

and beneficiaries, the fiduciary will not be held liable

48 No. 11-1112

simply because a ministerial, non-fiduciary agent has

given incomplete or mistaken advice to an insured.” Id.

i.

My colleagues conclude that the plan documents were

clear. However, the Master Group Policy did not set out

which providers were in the PHCS Open Access net-

work. Instead, beneficiaries were instructed to “call

the number listed on the back of [their] medical iden-

tification card[s]” to determine whether a provider

was in-network. R.259-3 at 15. This is much like Kenseth,

where “[t]he one and only course of action [the policy

documents] advised the reader in terms of seeking addi-

tional information as to whether a particular course of

treatment was covered by the [relevant] plan was to

call [the fiduciary]’s customer service line.” 610 F.3d at

477. The majority reasons that because the Master

Group Policy provided “clear instructions by which

[the Killians] could have determined whether [the pro-

viders] were within the PHCS Open Access network,”

the plan documents were sufficiently clear. Majority

Op. 26. Kenseth, however, makes clear that a fiduciary

cannot satisfy its broad fiduciary duty of disclosure

solely by instructing beneficiaries to call and ask for

the material information they are seeking. See 610 F.3d

at 479.

Here, “[t]he [Master Group Policy] encouraged partici-

pants to contact [CHPIC] before undergoing treatment

to determine whether the treatment would be [in-network],

and that is exactly what [Mr. Killian] did.” Id. at 477.

No. 11-1112 49

I would therefore conclude that CHPIC “expose[d] itself

to liability for the mistakes that [its] representatives

might make in answering [Mr. Killian’s] questions on

that subject.” Id. at 472.

ii.

I further believe that a reasonable trier of fact could

conclude that CHPIC was aware (or, at the very least,

that it should have been aware) that Mr. Killian was

attempting to determine whether the physicians who

were about to perform surgery on Mrs. Killian at Rush

were within Mrs. Killian’s network. The front of Mrs.

Killian’s insurance card provides two phone numbers.

The first of the two numbers is for “determin[ing]

Provider participation.” R.82-7 at 2. This was a “dedicated

line” for providing “[t]he most accurate, up to date infor-

mation” regarding provider participation. R.259-5 at 10

(emphasis in original). Because this line was dedicated

to informing beneficiaries whether providers were in-

network, CHPIC knew (or, at the very least, should have

known) that beneficiaries would call this line to deter-

mine a provider’s network status. Mr. Killian called

this number on April 7, 2006. After providing

Mrs. Killian’s name and card number, he said, “we are

here for a second opinion and she is going—they want

to admit her because we already determined the tumor

has to come off.” R.253 at 72; see also id. at 125 (“I said

she was being admitted to the hospital and they were

going to do the [brain] surgery.”). Mr. Killian referred

to Rush as “St. Luke’s,” the name that he had always

50 No. 11-1112

used for this hospital. Id. at 72.1 0 The CHPIC representa-

tive said that she was unable to find a listing under that

name and instructed Mr. Killian to “[g]ive [her] a call

back.” Id. She also said that Mrs. Killian should “go ahead

with whatever had to be done.” Id. at 125. Although

the representative did not directly state that Rush was

in Mrs. Killian’s network, a reasonable trier of fact

could conclude that this representative failed “ ‘to con-

vey complete and accurate information material to

[Mrs. Killian]’s circumstance.’ ” See Kenseth, 610 F.3d at

466 (citation omitted). My colleagues rely heavily on

Mr. Killian’s testimony that he and the agent “never

determined anything” during this phone call in con-

cluding that Mr. Killian “did not take her at her word.”

Majority Op. 23. However, Mr. Killian also testified that

he believed that Mrs. Killian’s surgery would be covered

“[b]ecause nobody ever said these are out-of-network.”

R.253 at 136. Taking these facts in the light most favorable

to Mr. Killian for purposes of summary judgment, a rea-

sonable trier of fact could conclude: (1) that Mr. Killian

was concerned about whether the providers were in-

network; (2) that Mr. Killian called the number that

Mrs. Killian’s insurance card said should be used to

determine provider participation to resolve this ques-

tion; (3) that the operator knew that Mr. Killian was

10

Rush University Medical Center adopted its current name

in 2003. See History, Chicago Hospital Jobs at Rush Univer-

sity Medical Center, http://www.jobsatrush.com/history.htm

(last visited Apr. 12, 2012). Before that, Rush’s name incorpo-

rated the name of a predecessor entity, St. Luke’s. Id.

No. 11-1112 51

seeking this information; (4) that the operator told

Mr. Killian to “go ahead with whatever had to be done,”

even though she knew that she had not been able to

establish the provider’s network status; and (5) that

Mr. Killian left that phone call believing that

Mrs. Killian could “go ahead” with whatever had to be

done because he had followed the instructions on

Mrs. Killian’s insurance card, was told to do so and

received no warning that the “go ahead” was not to

be understood as an authorization.

Although the testimony upon which the majority relies

might be read to suggest that Mr. Killian has come to

realize in the years since this call occurred that the

agent had not definitively authorized the treatment, the

remainder of Mr. Killian’s testimony suggests that,

during the stress of the moment, he believed that he

could rely on the agent’s representation to “go ahead.”

Mr. Killian “should not be penalized because he failed

to comprehend the technical difference between ‘[go

ahead]’ and ‘[the provider is in-network].’ The same

ignorance that precipitates the need for answers often

limits the ability to ask precisely the right questions.”

Kenseth, 610 F.3d at 467 (internal quotation marks omit-

ted). At the very least, the agent should have instructed

Mr. Killian that she was unable to locate an entry in

her system for “St. Luke’s” and that she could make no

representations at that time as to whether the provider

was in-network.

The majority also reasons that Mr. Killian could not

have relied on this instruction to “go ahead” because he

52 No. 11-1112

later called the second number. However, Mr. Killian

testified that, in making the second call, he was calling

“for preadmission,” as he was instructed to by

Mrs. Killian’s insurance card. R.253 at 74. The card said

that “[e]mergency admissions must be certified within

48 hours” and that this second number should be used

to obtain the necessary “UTILIZATION REVIEW.” R.82-7

at 3. Taking these facts in the light most favorable to

Mr. Killian, a reasonable trier of fact could conclude

that Mr. Killian made the second call to obtain the

required “certification,” or “UTILIZATION REVIEW,”

for his wife’s surgery. Having just learned that the

surgical procedure was necessary for his wife to live

longer than a few days, R.253 at 127-28, a reasonable

trier of fact could conclude that Mr. Killian believed

this was an emergency procedure for which he was not

required to obtain precertification seven days in advance.1 1

When Mr. Killian made this second call, he dialed the

second of two numbers on the front of Mrs. Killian’s

11

I do not suggest that Mrs. Killian’s surgery was in fact an

“emergency” for purposes of the policy. The parties have not

addressed this point, and its resolution is therefore unneces-

sary at this stage. Nevertheless, some discussion of the issue

is necessary for two reasons. First, it is important to deter-

mining what a rational trier of fact could make of Mr. Killian’s

phone calls on April 7, 2006. Second, the majority opinion ap-

pears to conclude that the Killians did not follow the pre-

certification instructions on Mrs. Killian’s insurance card.

See Majority Op. 26 n.9. As my discussion of the point re-

veals, however, this conclusion is not compelled by the record.

No. 11-1112 53

insurance card, which was for customer service. As I

have noted earlier, this was the same number that the

instructions on the back of the card said should be

used to certify admission. Thus, Mr. Killian did not “call

[the first representative] back,” as she had instructed.

However, at the summary judgment stage, Mr. Killian’s

decision to call a different number is not fatal to his

claim. There is evidence that CHPIC had encouraged

beneficiaries to use this number for determining pro-

vider participation, as well. Specifically, in the

Master Group Policy, CHPIC instructed beneficiaries

that they “must call the number listed on the back of

[their] medical identification card” in order “[t]o con-

firm that [a] . . . provider is a CURRENT participant

in [the beneficiary’s] provider Network.” R.259-3 at 15

(emphasis added). The back of Mrs. Killian’s insurance

card provides two different phone numbers: the cus-

tomer service number from the front of the card is pro-

vided twice; a vision benefits number is provided once.

See R.82-7 at 3. Therefore, CHPIC should have known

that beneficiaries such as Mr. Killian would be calling

this line to determine whether certain providers were

in their network.

Moreover, the second number that Mr. Killian called

was the correct and apparently the only number that he

could call to obtain the required certification review

with respect to the particular surgical procedure that his

wife was about to undergo. Given his earlier telephone

conversation, a reasonable trier of fact certainly could

conclude that any further information as to whether

the providers were in Mrs. Killian’s network would

54 No. 11-1112

have been provided in the course of this conversation

on authorizing the particular procedure.

Indeed, under these circumstances, CHPIC had an

affirmative obligation to inform Mr. Killian that the

providers Mrs. Killian was about to see were out-of-

network. See Kenseth, 610 F.3d at 466 (“[T]he trustee ‘is

under a duty to communicate to the beneficiary

material facts affecting the interest of the beneficiary

which he knows the beneficiary does not know and

which the beneficiary needs to know for his protection

in dealing with a third person.’ ” (citation omitted)). On

this record, a rational trier of fact could conclude that

this second operator was aware that Mr. Killian’s phone

calls were an effort to confirm two points: (1) that

the health care providers treating his wife were within

the Plan’s network; and (2) that the particular procedures

contemplated for her care were authorized by the Plan.

In this second call, Mr. Killian stated: “I’m trying to get

confirmation that we are going to be—my wife is going

to be admitted to Rush.” R.253 at 73. The representa-

tive laughed and said, “Oh, you mean St. Luke’s,” as if

she were speaking to a person sitting next to her. Id.

The second representative then informed Mr. Killian

that the hospital is known as “Rush Presbyterian.” Id.

At some point, Mr. Killian said that “Susan is going to

be admitted,” and the representative said “[o]kay.” Id.

From her laughter and attempt at humor, a reasonable

finder of fact well might conclude that this second repre-

sentative knew something about Mr. Killian’s prior call.

It would be reasonable to infer that this representa-

tive knew that Mr. Killian had attempted to determine

No. 11-1112 55

whether “St. Luke’s” was in Mrs. Killian’s network in

a prior call to the number for determining provider

participation.

The majority asserts that ERISA does not require a

fiduciary to set about on a “quest to uncover some kind

of harm that might befall a beneficiary.” Majority Op.

25. This statement, however true as a general principle,

hardly characterizes fairly this case. Given the broad

fiduciary duties imposed by ERISA, an insurance

company cannot defeat, as a matter of law, a breach-of-

fiduciary-duty claim by asserting that it was unaware

that an insured was seeking certain material plan infor-

mation when, as in the circumstances presented here,

the insured calls two different numbers that the in-

surance company itself established to provide the sort

of information in question. This is particularly true

when the representatives tell an insured to “go ahead

with whatever ha[s] to be done” while knowing (or at

least having reason to know) that the insured is

confused about this aspect of his plan and is about to

undergo a costly procedure that will not be fully covered.

The majority points out that “there is no evidence

in the record to suggest that any . . . failure on the rep-

resentatives’ part was due to a lack of oversight by Con-

cert.” Majority Op. 27. Assuming, arguendo, the truth

of this assertion, I do not believe this conclusion

entitles CHPIC to summary judgment at this stage.

We have affirmed an entry of judgment against a plan

administrator where the “plan documents . . . failed to

explain adequately” a particular provision and the lack

56 No. 11-1112

of clarity “was then exacerbated by [the fiduciary’s

agents] when [the beneficiary] inquired about her cover-

age.” Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 591

(7th Cir. 2000). In Kenseth, we read Bowerman to establish

that “by supplying participants and beneficiaries with

plan documents that are silent or ambiguous on a recur-

ring topic, the fiduciary exposes itself to liability for

the mistakes that plan representatives might make in

answering questions on that subject.” 610 F.3d at 472

(citing Bowerman, 226 F.3d at 591). Kenseth further

indicated that the principle emerging from Bowerman is

“especially true when the fiduciary has not taken appro-

priate steps to make sure that ministerial employees

will provide an insured with the complete and accurate

information that is missing from the plan documents

themselves.” Id. at 472 (emphasis added).

Regardless, CHPIC has not yet satisfied its initial

burden on summary judgment of “show[ing] that there

is no genuine dispute as to any material fact,” Fed. R. Civ.

P. 56(a), as to the appropriateness of the steps it took

to make sure that its ministerial employees provided

insureds with the complete and accurate information

that cannot be found in the plan documents themselves.

If it ever does, Mr. Killian then would have the burden

of coming forward with evidence to create a genuine

fact issue on this point.1 2

12

See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“Of

course, a party seeking summary judgment always bears the

(continued...)

No. 11-1112 57

iii.

If a beneficiary establishes that a fiduciary has

breached its duty, ERISA authorizes injunctions and “other

equitable relief.” See 29 U.S.C. § 1132(a)(3); Smith v. Med.

Benefit Adm’rs Grp., Inc., 639 F.3d 277, 283 (7th Cir. 2011).

When reversing summary judgments, we frequently

remand the actions to the district court so that the parties

can give more attention to the remedial question. 1 3 That

12

(...continued)

initial responsibility of informing the district court of the basis

for its motion, and identifying those portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material fact.”);

Logan v. Commercial Union Ins. Co., 96 F.3d 971, 979 (7th Cir.

1996) (“Only after the movant has articulated with references

to the record and to the law specific reasons why it believes

there is no genuine issue of material fact must the nonmovant

present evidence sufficient to demonstrate an issue for trial.”).

Of course, in an ordinary case, we would hold that a litigant

in Mr. Killian’s position waived this legal argument by failing

to articulate it once CHPIC moved for summary judgment.

See Teumer v. Gen. Motors Corp., 34 F.3d 542, 546 (7th Cir.

1994). As explained above, however, CHPIC has failed to

avail itself of the protections of our waiver rule. I would

therefore conclude that this claim is alive and that the burden

to establish a genuine issue of material fact on this point has

yet to be placed properly upon Mr. Killian.

13

See, e.g., Kenseth v. Dean Health Plan, Inc., 610 F.3d 452, 483

(7th Cir. 2010) (remanding where the plaintiff “may be able

(continued...)

58 No. 11-1112

approach is particularly appropriate here. I would there-

fore remand this claim to the district court in order to

afford Mr. Killian the opportunity to explain in greater

detail why he believes he is entitled to equitable relief

under § 1132(a)(3).

iv.

Today’s decision will have a significant impact on two

levels. To the plaintiff, it deprives him of the protection

of a federal statute designed specifically to ensure that

benefits plan fiduciaries take the steps they would take

if their own economic welfare was at stake. No reason-

able plan fiduciary can maintain that he would have

allowed himself to be treated as Mr. Killian maintains

that he and his wife were treated during a time of

great medical need. On a broader level, today’s holding

suggests a departure from our long-standing view

that ERISA’s incorporation of common law fiduciary

standards brings to federal benefits law the high degree

of loyalty and care by which those ancient fiduciary

principles have protected countless generations of English

and American trust beneficiaries. See Kenseth, 610 F.3d at

466 (“This duty of course includes an obligation not

to mislead a plan participant or to misrepresent the

terms or administration of an employee benefit plan,

including an insurance plan. But the duty is not limited

13

(...continued)

to identify a form of equitable relief that is appropriate to

the facts of this case”).

No. 11-1112 59

to that negative command. It includes an affirmative

obligation to communicate material facts affecting the

interests of beneficiaries. This duty exists when a bene-

ficiary asks fiduciaries for information, and even when

he or she does not.” (citations omitted) (internal quota-

tion marks omitted)); see also Bixler v. Cent. Pa. Teamsters

Health & Welfare Fund, 12 F.3d 1292, 1300 (3d Cir. 1993)

(“Th[e] duty to inform is a constant thread in the rela-

tionship between beneficiary and trustee; it entails not

only a negative duty not to misinform but also an af-

firmative duty to inform when the trustee knows that

silence might be harmful.”). Because I believe that today’s

decision frustrates the manifest intent of Congress that

Americans have such protection, I respectfully dissent

from this part of the court’s holding.

Conclusion

For the foregoing reasons, I concur in part and dissent

in part.

4-19-12