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March 15, 2004.

TERRY L. MANNY, Plaintiff

The opinion of the court was delivered by: CHARLES NORGLE, District Judge


Before the court are Defendants' Motion for Summary Judgment [20-1] and Plaintiff's Cross-Motion for Summary Judgment [25-1], For the following the reasons, Defendants' motion is granted; Plaintiff's motion is denied.


  This case involves claimed violations of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., arising out of Defendant's, Central States, Southeast and Southwest Areas Health and Welfare and Pension Funds ("Central States"), denial of a predetermination for coverage of gastric bypass surgery. Plaintiff, Terry L. Manny ("Manny"), is a member of the International Brotherhood of Teamsters, Local Union 705. Manny is a covered individual of the Central States Health and Welfare Fund based upon his enrollment by Stahly Page 2 Cartage Company. He is employed by Stahly Cartage Co. which pursuant to a Teamster union contract requires that Stahly Cartage Co., pay health and welfare contributions to Central States for its covered Teamster employees. Manny is 58 years old, 6 feet 1 inches tall and weighs approximately 470 pounds. Manny claims his various health conditions are related to his weight. They include: type II diabetes, hypertension, osteoarthritis, chronic obstructive pulmonary disease, back pain, swelling in the legs and ankles, sleep apnea, and a 40% to 50% blockage to two arteries of his heart. Central States provides Manny with medical coverage pursuant to an ERISA-qualified Employee Health and Welfare Plan ("the Plan").

  Manny is attempting to have gastric bypass surgery, for which he asserts the Plan should provide coverage. Manny asserts that gastric bypass surgery would allow him to drastically reduce his weight and thus alleviate his other related health problems. Central States asserts that gastric bypass surgery is designed only to reduce a person's weight, which is a cosmetic procedure specifically not covered under the health plan, and that any other health benefits derived are not a direct result of the surgery but rather incidental.

  Manny applied for a predetermination as to whether the health plan would cover his gastric bypass surgery. Central States denied Manny's claim for gastric bypass surgery on February 12, 2002. On February 24, 2002, Manny appealed the denial of his predetermination. Central States denied Manny's appeal on May 15, 2002. On November 20, 2002, Manny again appealed his denial of predetermination. Central States officially denied Manny's third request for predetermination on November 27, 2002. After exhausting all administrative remedies, Manny filled this claim in the Federal Court. Both parties have moved for summary judgment and the issue is now ripe for ruling. Page 3


  A. Standard of Review

  Summary judgment is permissible when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Technical Services. Inc., 176 F.3d 934, 936 (7th Cir. 1999); see also Shank v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999) (stating that a party opposing summary judgment must present "what evidence it has that would convince a trier of fact to accept its version of events"). A defendant is entitled to put the plaintiff to his proofs and demand a showing of the evidence. See, e.g., Navarro v. Fuji Heavy Industries, Ltd., 117 F.3d 1027, 1030 (7th Cir. 1997). If the plaintiff fails to come up with the required proof, the defendant is entitled to summary judgment. See id. It bears repeating that the plaintiff must present evidence, rather than speculation and conclusions without factual support. See Rand v. CF Industries. Inc., 42 F.3d 1139, 1146-47 (7th Cir. 1994).

  In deciding a motion for summary judgment, the court can only consider evidence that would be admissible at trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). The court views the record and all reasonable inferences drawn therefrom in the light most favorable to the party opposing summary judgment. See Fed.R.Civ.P. 56(c); Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995). "In the light most favorable" simply means that summary judgment is not appropriate if the court must make "a choice of inferences." See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); First Nat'l, Bank of Page 4 Arizona v. Cities Service Co., 391 U.S. 253, 280 (1968); Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir. 1996). The choice between reasonable inferences from facts is a jury function. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Anderson, 477 U.S. at 249-50; 10 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure: Civil § 2712, at 574-78 (2d ed. 1983)).

  Manny's only assertion is one for benefits under his ERISA plan. "A claim for benefits under an ERISA-governed plan `is a matter of contract interpretation. When there are no triable issues of fact, we have held that contract interpretation is a subject particularly suited to disposition by summary judgement.'" Bechtold v. Physicians Health Plan of Northern Ind. Inc., 19 F.3d 322, 325 (7th Cir. 1994) (quoting Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1389 (7th Cir. 1993)).


  ERISA was enacted "to promote the interests of employees and their beneficiaries in employee benefit plans," Shaw v. Delta Airlines. Inc., 463 U.S. 85, 90 (1983), and "to protect contractually defined benefits." Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 148 (1985); see generally 29 U.S.C. § 1001 et seq. (setting forth congressional findings and declarations of policy regarding ERISA). ERISA requires "a `full and fair' assessment of claims and a clear communication to the claimant of the `specified reasons' for benefit denial." The Black &Decker Disability Plan v. Nord, 538 U.S. 822, 123 S.Ct. 1965, 1967 (2003). ERISA provides "a panoply of remedial devises" for participants and beneficiaries of benefits plans. Firestone Tire and Rubber Page 5 Co. v. Brunch, 489 U.S. 101, 106 (1989) (citing Massachusetts Mutual Life Ins. Co., 473 U.S. at 146).

  The Supreme Court held in Firestone that a "de novo standard of review applies regardless of whether the plan at issue is funded or unfunded and regardless of whether the administrator or fiduciary is operating under a possible or actual conflict of interest." Firestone, 489 U.S. at 115 (citing Restatement (Second) of Trust § 187, Comment'd (1959)). Further, the Seventh Circuit has stated "[t]he [Firestone] case makes plenary review the default rule, that is, the rule to govern when the plan documents contain no indication of the scope of judicial review; and it is a natural and modest extension of [Firestone], or perhaps merely a spelling out of an implication of it, to construe uncertain language concerning the scope of judicial review as favoring plenary review as well." Herzberger v. Standard Insurance Co., 205 F.3d 327, 330 (7th Cir. 2000); see also O'Reilly v. Hartford Life & Accident Ins. Co., 272 F.3d 955 (7th Cir. 2001). However "an ERISA plan can likewise specify that the administrator has ...

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