Lyn Everhart v. Allmerica Financial Life Insurance Company, Dba State Mutual Life Assurance Company of America

REINHARDT, Circuit Judge,

dissenting:

For the reasons explained below, I respectfully dissent. The majority holds that “Everhart may not bring suit to recover benefits against Allmerica in its capacity as a third-party insurer under the applicable ERISA provisions” because “ § 1132(a)(1)(B) does not permit suits against a third-party insurer to recover benefits when the insurer is not functioning as a plan administrator.” Maj. Op. at 752. The majority, however, can point to no provision of ERISA either limiting the parties that may be sued under the statute to ERISA plans and administrators, or prohibiting suits against third-party insurers. Therefore, applying the reasoning of the Supreme Court in Hams Trust and Savings Bank v. Salomon Smith Barney, there is “no limit on the universe of proper defendants” 530 U.S. 238, 246 , 120 S.Ct. 2180 , 147 L.Ed.2d 187 (2000) where the statute does not establish one. I simply cannot agree with the majority’s determination to strip from Everhart and other ERISA plan beneficiaries and participants their rights under the statute to sue parties that may be hable for the payment of the benefits owed them.

ERISA permits a participant or beneficiary to bring suit to “recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132 (a)(1)(B). The statute does not state, as the majority claims it does, that

a money judgment for an action brought under § 1132(a)(1)(B) may be enforced “only against the plan as an entity and shall not be enforceable against any other person unless liability against such person is established in his individual capacity.” (quoting Id. § 1132(d))

The majority’s incomplete quotation of the statute introduces a significant error into its reading. The statute actually states, in a section entitled “Status of employee benefit plan as an entity,” that an ERISA plan may sue or be sued as an entity, Id. § 1132(d)(1), that service of process upon a trustee or administrator of an ERISA plan constitutes service upon the plan, Id. § 1132(d)(1), and that

[a]ny money judgment under this sub-chapter against an employee benefit plan shall be enforceable only against the plan as an entity and shall not be enforceable against any other person unless liability against such person is established in his individual capacity under the subchapter, (emphasis added) Id. § 1132(d)(2)

This provision clearly applies only to suits against ERISA plans, and not to suits that may be brought against other parties under ERISA. Contrary to the majority’s implication, the provision does not limit the ability of participants or beneficiaries to bring actions against parties other than plans under § 1132(a)(1)(B) or any other part of § 1132. It simply makes clear that when a party does sue a plan, any money judgment it receives against the plan can be enforced only against that plan as an entity, and not against any other person, with the exception noted. This prevents *758 parties from suing the plan as an entity, and then attempting to enforce the judgment against the individual trustees or other individuals associated with the plan. 1 The clear import of § 1132(d) is to put ERISA litigants on notice that to obtain and enforce a money judgment against any party other than a plan, they must sue that other party directly. True, there may be few others who can be said to owe them the benefits, and thus few others who may be liable to suit under § 1132(a)(1)(B), but as I explain below, third-party insurers qualify.

Similarly, the majority misreads our precedent in Gelardi v. Pertec Computer Corp., 761 F.2d 1323 (9th Cir.1985). The facts in Gelardi were as follows: the ERISA plan was a self-insured plan, funded by the employer, Pertec Computer Corporation (Pertec). Self Insurance Programs (Self) was a separate corporation hired by Pertec to administer the Plan. Pertec Employee Benefits Committee was the entity to which the Plan Administrator (Pertec) had delegated authority to make the final review of denied claims. There was no third-party insurer involved. Ge-lardi attempted to sue her employer (Per-tec) and the third-party administrator (Self) of the Plan. The Gelardi court refused to permit suit against the employer or the third-party administrator because neither, according to the operation of the plan, had discretionary control over the disposition of claims, nor were they fiduciaries. The Committee had been delegated that control. The court’s language that “Gelardi must sue either the Plan or the fiduciary” must be taken within the context of the facts and circumstances of the case. What the Gelardi court clearly meant was that, given the provisions of the plan at issue, Gelardi could not sue her employer or the third-party administrator; the only parties Gelardi could sue were the parties with the authority or obligation to determine or pay the benefits — the Plan and the fiduciary. The Gelardi language relied on by the majority referred to an employee’s right to sue under the circumstances of the particular Plan, and did not establish a general rule as to whom employees may sue under different circumstances. Gelardi said nothing about the existence or absence of a right of ERISA beneficiaries to sue insurance companies, let alone insurance companies that are legally responsible, by contract, for providing ERISA benefits.

Following Gelardi , a split developed in this circuit over whether an ERISA beneficiary could sue a third-party insurer. Two cases, Gibson v. Prudential Ins. Co., 915 F.2d 414, 417 (9th Cir.1990), and Madden v. ITT Long Term Disability Plan for Salaried Employees, 914 F.2d 1279, 1287 (9th Cir. 1990), held, without reasoning, but citing Gelardi , that ERISA beneficiaries could sue only plans or fiduciaries of plans. Three cases, Forsyth v. Humana, Inc., 114 F.3d 1467 (9th Cir.1997), aff'd, 525 U.S. 299 , 119 S.Ct. 710 , 142 L.Ed.2d 753 (1999), Ward v. Management Analysis Company Employee Disability Benefit Plan, 135 F.3d 1276 (9th Cir.1998), Cisneros v. UNUM Life Insurance Company of America, 134 F.3d 939 (9th Cir.1998), affirmed the rights of ERISA beneficiaries to sue third-party insurers by permitting suits against such insurers to proceed. Because of this intra-circuit split, the proper course for us to follow would be to request *759 that the case be heard en banc. 2 Because the majority declines to do so, I will explain here why, were we free to disregard the conflict and decide the case from scratch, I would hold that an ERISA beneficiary may sue a third-party insurer who is legally responsible, by contract, for the payment of ERISA benefits.

The “recovery of benefits” provision of ERISA permits participants or their beneficiaries to sue only to recover benefits. Under this provision, plaintiffs are not permitted to receive punitive relief or damages. In this sense, recovery under the provision is akin to equitable relief ordering payment of unpaid benefits, and the Court’s reasoning in the recent Harris decision is particularly applicable. 530 U.S. 238 , 120 S.Ct. 2180 . In Harris, the Court found that § 1132(a)(3), permitting equitable relief to redress a violation of the fiduciary’s duty to refrain from certain transactions with “parties in interest,” did not contain a limit on defendants because it was meant as a broad remedy of redress, and because the statutory provision expressed no limit on possible defendants. 530 U.S. at 246-247 , 120 S.Ct. 2180 . Similarly, § 1132(a)(1)(B) was intended as a broad remedy of redress, and contains no explicit limit on possible defendants; therefore, no such limit should be read into it. For this reason, both parties that legally owe the benefits and parties that have the legal power to determine or pay those benefits because they administer them, are proper party defendants in an ERISA suit under § 1132(a)(1)(B).

The extensive line of cases permitting suits against plan administrators supports the proposition that ERISA does not limit § 1132(a)(1)(B) suits to suits against the plans themselves, but permits suit against parties responsible for providing or administering ERISA benefits and making discretionary decisions as to whether benefits were owed. See Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469 , 1471 (9th Cir.1983) (“The beneficiary of an ERISA plan may bring a civil action against a plan administrator ...”); see also Hall v. Lhaco, Inc., 140 F.3d 1190, 1194 (8th Cir. 1998) (“The proper party against whom a claim for ERISA benefits may be brought is the party that controls administration of the plan, not the plan participant’s employer.” (quotations omitted)); Layes v. Mead Corp., 132 F.3d 1246, 1249 (8th Cir.1998) (citing Garren and permitting suit against insurer but not employer, because insurer was “at all relevant times the sole administrator of the long-term disability plan offered by [employer]”); Garren v. John Hancock Mut. Life Ins. Co., 114 F.3d 186, 187 (11th Cir.1997) (“The proper party defendant in an action concerning ERISA benefits is the party that controls administration of the plan.”); Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir.1988) (holding that the pension committee which was “responsible for administering and interpreting the plan and was solely responsible for a denial of benefits” was therefore “the only proper defendant in an action concerning benefits”). In this case, Allm-erica, as the third-party insurer, was responsible for evaluating and determining the merits of claims filed by the plan’s participants and beneficiaries. It controlled the administration of the plan and made the discretionary decisions as to whether benefits were owed. Therefore, *760 although not the plan administrator, it can properly be sued under ERISA.

A party that is legally responsible for paying ERISA benefits can also properly be sued under § 1132(a)(1)(B). That third-party insurers in particular can be sued when they are legally responsible, by contract, for the payment of ERISA benefits is confirmed by several cases in this circuit in which ERISA beneficiaries have been permitted to bring suit against third party insurers under that provision. In Forsyth v. Humana, Inc., 114 F.3d 1467 (9th Cir.1997), aff'd, 525 U.S. 299 , 119 S.Ct. 710 , 142 L.Ed.2d 753 (1999), class members comprised of employee beneficiaries brought a claim for recovery of benefits under § 1132(a)(1)(B), contending that the third-party insurer of their plan had breached its contract with them by negotiating a discount with a hospital and not passing the discount along to them. We upheld the district court’s grant of summary judgment in the plaintiffs’ favor against the insurer under § 1132(a)(1)(B). The Supreme Court, in an opinion by Justice Ginsburg for a unanimous court, affirmed our decision. The majority contends that the suit against the third party insurer was allowed to proceed in Forsyth only because the insurance company functioned as the plan administrator. There is nothing in Forsyth to support either my colleagues’ factual assumption or their legal conclusion. The contention that it is “clear” from Forsyth’s discussion of Varity Corp. v. Howe, 516 U.S. 489 (1996), that Humana was understood to be the plan administrator is patently incorrect. Varity Corp. was a case, like many cited by the majority, in which the ERISA plan at issue was self-funded, and the employer served as the plan administrator. There was no third-party insurer in Varity Corp.; therefore, the Forsyth court could not possibly have viewed the facts as being analogous. In fact, it is “clear” that Forsyth cited Varity Corp. on an entirely different point. It cited Varity Corp. for the proposition that a suit could not be brought under § 1132(a)(3), the “catchall” fiduciary duty provision, when relief was already available under § 1132(a)(1)(B); then, because relief was available against the insurer under § 1132(a)(1)(b), Forsyth , relying on Varity Corp. denied a similar “catchall” claim.

I would also point out that at no point in the Supreme Court decision, the appeals court decision, or the district court decision in Forsyth is it held, asserted, suggested or even implied that Humana was the plan administrator. The majority’s distinguishing of Forsyth on that basis is simply unsupportable. The relevance of Forsyth to the issue before us is that the suit was allowed to proceed because in that case, as in this, the third-party insurer was legally responsible for paying the ERISA benefits the plaintiffs sought to recover. Moreover, in at least two other instances, this circuit has permitted ERISA beneficiaries to sue third-party insurers. In Cisneros v. UNUM Life Insurance Company of America, 134 F.3d 939 (9th Cir. 1998), the ERISA beneficiary was permitted to sue the third-party insurer for the recovery of benefits despite the fact that the insurer was not the plan administrator and neither the plan nor the plan administrator were named as defendants. Finally, in Ward v. Management Analysis Company Employee Disability Benefit Plan, 135 F.3d 1276 (9th Cir.1998), an ERISA participant was also permitted to sue the insurer for the recovery of benefits, even though the insurer was not the plan administrator and even though the participant was not permitted to sue the employer who established the plan.

The majority misconstrues the distinction the plaintiff claims is made under the statute between suits against self-funded *761 plans and suits against plans that purchase benefits from a third-party insurer. The distinction that exists in the ERISA scheme and the cases is based on this: One can legitimately sue an entity that is legally responsible for the payment of ERISA benefits or one that makes the discretionary decisions as to those benefits. In the case of self-funded plans, it is likely that few third parties will meet this standard, hence Gelardi’s holding that Ge-lardi could sue only “the Plan or a fiduciary.” In the case of plans in which a third party, such as an insurer, is legally responsible, by contract, for the making of discretionary decisions and for the payment of ERISA benefits, such third parties properly can be sued under ERISA.

Finally, permitting suits such as Ever-hart’s furthers the policies of ERISA, and is consistent with our duty to develop a body of federal common law applicable to ERISA. “Under ERISA, Congress has authorized the courts ‘to formulate a nationally uniform federal common law to supplement the explicit provisions and general policies set out in[the Act].’ ” Sec. Life Ins. Co. of Am. v. Meyling, 146 F.3d 1184 , 1191(9th Cir.1998) (quoting Peterson v. Am. Life & Health Ins. Co., 48 F.3d 404, 411 (9th Cir.1995)) (alteration in original). In formulating the federal common law applicable to ERISA, courts are to be “governed by the federal policies at issue.” Menhorn v. Firestone Tire & Rubber Co., 738 F.2d 1496, 1500 (9th Cir.1984). The stated Congressional policy of ERISA is to “protect the interests of participants in employee benefit plans and their beneficiaries.” 29 U.S.C. § 1001 (b) (congressional findings and declaration of policy). Specifically, Congress sought through ERISA to protect plan participants and beneficiaries “as against employers, insurers and administrators of employee benefit plans.” Emard v. Hughes Aircraft Co., 153 F.3d 949, 958 (9th Cir.1998) (citing 29 U.S.C. § 1001 (Congressional findings and policy)) (emphasis added). It is consistent with this policy to permit suits against any party that “controls administration of a plan” or is legally responsible for the payment of ERISA benefits, as this circuit has implied in numerous cases permitting ERISA beneficiaries to sue plan administrators and third-party insurers. To leave an ERISA beneficiary such as Everhart without a remedy against the very party that has deprived her of her interest in her late husband’s ERISA plan by refusing to pay the benefits she seeks to recover would be directly contrary to the stated policy of the statute.

Normally under state common law, insurers such as Allmerica can be sued by parties, such as Everhart, who qualify as third-party beneficiaries, see Restatement (Second) of Contracts § 302(1)(b) and comm, c, illustration 4, and § 304 (1979); 46A C.J.S. Insurance § 1520 et seq. In developing a federal common law to govern ERISA suits, courts are expected to “refer[ ] to [and] be[ ] guided by principles of state law.” Menhorn v. Firestone Tire & Rubber Co., 738 F.2d 1496, 1500 (1984). See also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110 , 109 S.Ct. 948 , 103 L.Ed.2d 80 (1989). I would adopt the state common law regarding third party beneficiaries and incorporate it into federal common law for purposes of ERISA. The responsibilities owed by an insurer to the beneficiaries of the policies it sells should not be diminished simply because the policy at issue is a Plan’s way of administering employee benefits. It would further the purposes of ERISA for participants and beneficiaries to be permitted to vindicate their claims against insurers under the statute and to recover from them the benefits they are owed.

There is no statutory prohibition in ERISA on suits against third-party insur *762 ers, nor is there a provision in the statute limiting ERISA suits to those against plans as entities. There is, however, significant authority in our circuit permitting suits against third-party insurers. Allowing ERISA beneficiaries such as Everhart to vindicate their ERISA rights against those responsible for the resolution of claims and for the payment of benefits is consistent with the core purposes of the statute. Under these circumstances, were this panel free to decide the issue despite the intra-circuit split, I would hold that Everhart has standing to pursue her suit against Allmerica. In short, I would uphold her right to recover the benefits owed her as an ERISA beneficiary, as the statute intends.

. Similarly, the statute does not permit the artifice of suing a Plan's employee in his individual capacity as a means of suing the Plan. Such were the circumstances in Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482 (7th Cir. 1996), in which the Seventh Circuit dismissed an action for denial of benefits against the Plan employee who made the benefits determination and required that the Plan itself be sued as an entity.

. The intra-circuit split discussed in the majority opinion — whether only the plan itself may be sued or whether plan administrators may also be sued — demonstrates the confusion and disagreement in our case law on the question of standing under the ERISA provision at issue. Maj. Op. at 753-54. It provides further support for the argument that the instant case should not be resolved by this panel but by an en banc court.