# Citizen's Gas & Coke Utility v. Local Union No. 1400, International Brotherhood of Electrical Workers

> Indiana Court of Appeals · October 4, 2007 · 874 N.E.2d 391

URL: https://www.frixlaw.com/law-library/cases/9720818

## Case

- **Full name:** CITIZENS GAS & COKE UTILITY, Appellant-Plaintiff, v. LOCAL UNION NO. 1400, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Appellee-Defendant
- **Court:** Indiana Court of Appeals
- **Decided:** October 4, 2007
- **Citations:** 874 N.E.2d 391; 2007 Ind. App. LEXIS 2233; 2007 WL 2874421
- **Precedential status:** Published
- **Opinion:** Concurrence by Sullivan
- **Judges:** Vaidik, Robb, Sullivan
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9720818

## Opinion text

SULLIVAN, Senior Judge,
concurring.
I concur but write to add a parenthetical comment as to Part II concerning the $75,000 award representing the equivalent of a life insurance benefit under the group policy issued by Prudential pursuant to the CBA.
That amount would have been payable to Mrs. Hilt under the Prudential insurance policy had Mr. Hilt been “actively employed” at the time of his death. It is important to note, as does the majority, that a third party, i.e., Prudential, was not ordered to pay proceeds of the policy. In this regard, therefore, I agree with the majority that the dispute is not between the Union and a third party but rather remains a dispute between the Union and Citizens.
I also agree that unlike the situation in Eljer Manufacturing, Inc. v. Kowin Development Corp., 14 F.3d 1250 (7th Cir.1994), cert. denied, 512 U.S. 1205 , 114 S.Ct. 2675 , 129 L.Ed.2d 810 , the life insurance proceeds are not completely separate from the Collective Bargaining Agreement between the Union and Citizens because the CBA specifically provided for such policy benefits as a fringe benefit.
This, however, does not end the inquiry. Citizens places great emphasis upon a provision of the insurance policy issued by Prudential pursuant to the CBA between Citizens and the Union. Under the insurance policy in place, it was the sole prerogative of Prudential as Claims Administrator of the insurance plan “to make factual findings, and to determine eligibility for benefits.” (App. at 33). This provision of the Insurance Contract as part of the CBA does not make Prudential a third party to the dispute between Citizens and the Union. It is argued, however, that the provision prohibits the Arbitrator under the CBA to short circuit the fact-finding prerogative of Prudential. The only possible *403 factual dispute in this respect is whether, absent his employment termination, Mr. Hilt would have been “actively employed” at the time of his death. 7
I would hold it unnecessary to resolve that factual issue. It was the improper conduct by Citizens that made it impossible for Mr. Hilt to be employed, “actively” or otherwise, at the time of his death. It was this conduct that rendered inapplicable or inoperable the provision for Prudential to make the factual determination.
For this reason Citizens may not justifiably insulate itself from liability under the life insurance coverage afforded by the CBA. And for this reason, it was appropriate for the Arbitrator to award $75,000 (the equivalent of the policy benefit) against Citizens rather than an order for Prudential to pay under the insurance contract itself.
. In this respect I reach no conclusion whether the burden to come forward with such evidence was upon the Union and/or Mrs. Hilt or whether it was Citizens' duty to submit evidence that he would not have been so employed at the time of his death. Nevertheless, one might argue that by seizing upon the Union's or Mrs. Hilt’s failure to adduce evidence that Mr. Hilt would have been "actively employed,” Citizens was claiming that such evidence was essential to the claim for life insurance benefits and of course, would have been appropriately considered by the Arbitrator. Taken in this light, the position would seem to undercut the argument that the Arbitrator could not make the determination at all because to do so would usurp Prudential’s sole fact-finding prerogative. See infra.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9720818. Public record. Not legal advice.