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VEST v. GLEASON & FRITZSHALL

September 7, 1993

GEORGE VEST, JR., MILTON HOLZMAN, THOMAS E. RYAN, RICHARD S. PEPPER, ALBERT KAUFMAN, D.J. VELO, ROBERT LID and MELVIN GRAY, on behalf of the CHICAGO DISTRICT COUNCIL OF CARPENTERS WELFARE FUND, Plaintiffs,
v.
GLEASON & FRITZSHALL, RICK A. GLEASON and STEVEN N. FRITZSHALL, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Trustees of the Chicago District Council of Carpenters Welfare Fund ("the Fund") bring this two-count complaint against Rick Gleason ("Gleason"), Steven Fritzshall ("Fritzshall"), and the law firm of Gleason & Fritzshall, charging defendants with breaching fiduciary duties under the Employee Retirement Income Security Act of 1974 ("ERISA"), forgery, and conversion. Presently before this court is defendants' motion to dismiss Count I for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, we dismiss the complaint in its entirety.

 I. Factual Background *fn1"

 Notwithstanding the Fund's coverage of his expenses, Klimas hired Gleason & Fritzshall to sue Joseph Walski, the man responsible for his injuries. Eventually, in December, 1991, Gleason negotiated a $ 50,000 settlement of the claims against Walski, but failed to notify the Fund or gain its approval. Later that month, Gleason cashed the check, made out to Gleason & Fritzshall, Klimas, and the Fund, presenting it to the bank with his own signature and those of Klimas and Perry Bronson ("Bronson"), as an agent of the Fund. The Fund alleges that Bronson's signature was forged, and that in any event Bronson was not authorized to endorse checks on behalf of the Fund.

 The Fund did not learn of the settlement until April, 1992, and did not receive any reimbursement until October, 1992, when Gleason sent a $ 13,000 check to the Fund, ostensibly representing the Fund's share of the settlement.

 II. Discussion

 In Count I, the Fund alleges that defendants owed it fiduciary duties resulting from Gleason & Fritzshall's representation of a Fund beneficiary and their decision to take control of settlement proceeds that belonged to the Fund. Defendants seek to dismiss this count, arguing that they are not fiduciaries under ERISA, and thus could not have breached any fiduciary duties.

 
ERISA defines a fiduciary as follows:
 
[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, . . . (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.

 29 U.S.C. § 1002 (21)(A). Courts have held that subsection (i) confers fiduciary responsibilities in two sorts of circumstances -- those where a party becomes a fiduciary by virtue of control he legitimately wields, regardless of any intent to create such a relationship, *fn3" and those where a party possessing some measure of legitimate control over plan assets exceeds his grant of authority and exercises discretionary control over those assets. See, e.g., Yeseta v. Baima, 837 F.2d 380 (9th Cir. 1988) (despite fact that company attorney was not authorized to dispose of plan assets, he was authorized to write checks on various company accounts, and court found fiduciary duty in light of the fact that he in fact made withdrawals from the plan); Olson v. E.F. Hutton & Co., 957 F.2d 622 (8th Cir. 1992) (account representative authorized to invest pension assets in certificates of deposit found to be a fiduciary where he made unauthorized excessive transactions). *fn4" This case does not properly fall within either category.

  In Chapman v. Klemick, 750 F. Supp. 520 (S.D. Fla. 1990), a factually similar case on which plaintiffs rely, the court reasoned that settlement proceeds became plan assets pursuant to the subrogation agreement, and concluded that the attorney exercised "discretionary control respecting . . . disposition of assets" when he decided how to disburse those proceeds. Unlike Chapman, however, plaintiffs here do not, and apparently cannot, allege that defendants ever lawfully controlled the settlement proceeds. *fn5" Instead the allegations make clear that the settlement check was made out to Klimas, Gleason & Frtizshall, and the Fund. Accordingly, all three signatures were required to negotiate the check and access the money, as evidenced by the forgery of Bronson's signature. Absent any initial authority or control over plan assets, no basis exists for finding a fiduciary relationship. See Hotel Employees Union Welfare Fund v. Gentner, 815 F. Supp. 1354, 1358 n.4 (D. Nev. 1993) (Court found that attorney who represented plan beneficiary subject to subrogation agreement was not a fiduciary under ERISA, but noted that its analysis "might very well change if, for example, the attorney held the entire settlement in trust for the client, or in some other manner exerted complete control over the settlement funds."). Accordingly, we grant defendants' motion to dismiss Count 1. *fn6"

 This decision, moreover, makes sense. In Hotel Employees, the court articulated three problems inherent in finding that an attorney who represents a beneficiary subject to a subrogation agreement is a fiduciary. First, by the plaintiffs' logic, any recipient of settlement funds, including parties with liens on the proceeds, would exercise discretionary authority over fund assets and would have to be considered fiduciaries. The court ...


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