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
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
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.
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
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
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
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 ...