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June 22, 2004.

ITI ENTERPRISES, et al., Defendants.

The opinion of the court was delivered by: BLANCHE MANNING, District Judge


Plaintiff Diana Jurgovan was a member of an ERISA welfare benefit plan. Defendant Metropolitan Life and its predecessor provided claims processing services for the plan. Ms. Jurgovan developed a serious medical condition which required surgical and medical treatment. When all of her expenses were not paid, this ERISA suit followed. Metropolitan Life's motion to dismiss is before the court. For the following reasons, Metropolitan Life's motion is granted.

I. Background

  The following facts are drawn from Ms. Jurgovan's complaint. Defendant Credit Services Group employed Ms. Jurgovan. Credit Services and its affiliated companies, defendants ITI Enterprises and Intercounty Title Company of Illinois, sponsored and self-funded an ERISA benefit plan which provided hospital, medical, and prescription drug benefits. Ms. Jurgovan was a member of this plan. Defendant Metropolitan Life and its predecessor in interest, New England Mutual Life, provided claims processing services for the plan. According to Ms. Jurgovan, Metropolitan Life had discretionary authority over the plan's administration. Defendant Michael Hermes was the plan administrator.

  In February of 2000, Ms. Jurgovan went on maternity leave. While she was on leave, she developed a brain circulation abnormality which required surgical and other medical treatment. On June 23, 2000, before she completed her treatment, she learned that Credit Services had terminated her employment. On June 30, 2000, she received notices regarding her COBRA rights from Credit Services.

  Ms. Jurgovan alleges her medical expenses were not paid because Credit Services, ITI Enterprises, and Intercounty Title Company failed to adequately fund the plan. She thus filed a two-count complaint against Credit Services, ITI Enterprises, Intercounty Title Company, Metropolitan Life, and Mr. Hermes. In Count I, she claims that the defendants knew that the plan was insolvent and had a fiduciary duty to tell her this. She alleges that she would have rearranged her treatment schedule and obtained alternative coverage if she had known that about the plan's true financial condition. She seeks restitution for the medical claims she filed with the plan from all the defendants, jointly and severally. In Count II, which is directed solely at Metropolitan Life, Ms. Jurgovan alleges that Metropolitan Life had a common law duty to advise her of the plan's financial condition and thus is equitably estopped from contesting that it is responsible for the medical claims she filed with the plan.

  II. Discussion

  A. Standard on 12(b)(6) Motion to Dismiss

  In ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the court must assume the truth of all facts alleged in the complaint, construing the allegations liberally and viewing them in the light most favorable to the plaintiff. See, e.g., McMath v. City of Gary, 976 F.2d 1026, 1031 (7th Cir. 1992); Gillman v. Burlington N.R.R. Co., 878 F.2d 1020, 1022 (7th Cir. 1989). Dismissal is properly granted only if it is clear that no set of facts which the plaintiff could prove consistent with the pleadings would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kunik v. Racine County, Wis., 946 F.2d 1574, 1579 (7th Cir. 1991).

  B. Count I

  Metropolitan Life contends that Ms. Jurgovan is not entitled to equitable relief against it under § 502(a)(3) of ERISA, 29 U.S.C. § 1132(a)(3), because: (1) she can receive adequate relief via an action for benefits against the plan under § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B); and (2) in any event, her claim for restitution is in fact a claim for damages at law, which are not available under § 502(a)(3). Because the court agrees with Metropolitan Life's first argument, it will not reach its alternative contention that Ms. Jurgovan's claim for restitution pursuant to § 502(a)(3) is a claim for damages at law.

  According to Metropolitan Life, Ms. Jurgovan's claims against it under § 502(a)(3) are foreclosed because adequate relief is already available via an action for benefits against the plan. In support, Metropolitan Life points to the Supreme Court's decision in Varity Corporation v. Howe, 516 U.S. 489, 515 (1996). In that case, the Court, in determining whether plaintiffs could seek relief under § 502(a)(3), stated that § 502(a)(3) was a "catchall provision [that] operate[s] as a safety net, offering appropriate equitable relief for injuries caused by violations that § 502 does not elsewhere adequately remedy." Id. at 490. The Court also noted that "where Congress elsewhere provided adequate relief for a beneficiary's injury, there will likely be no need for further equitable relief, in which case relief would normally not be `appropriate.'" Id. at 515. Varity thus stands for the proposition that if a plaintiff can recover under another section of ERISA, she normally cannot seek relief under § 502(a)(3). Metropolitan Life thus vigorously contends that relief under § 502(a)(3) is unavailable because Ms. Jurgovan can seek relief under another section of ERISA — § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). In response, Ms. Jurgovan contends that a cause of action against an insolvent entity under § 502(a)(1)(B) is inadequate because, by definition, she cannot recoup any monies from a plan that has no money. To resolve this issue, the court must determine whether relief is "unavailable" (thereby making a claim under § 502(a)(3) possible) under Varity if a plaintiff has an actionable claim for damages under § 502(a)(1)(B) as opposed to the ability to actually collect on a judgment in her favor under that section.

  The vast majority of the courts construing Varity have held that when a plaintiff can state a claim under § 502(a)(1)(B), then "[r]eliance under § 502(a)(3), a catchall provision, is unnecessary and inappropriate." Frommert v. Conkright, 206 F. Supp.2d 435, 439 (W.D.N.Y. 2002). Thus, the Eleventh Circuit held that an ERISA plaintiff who can state a claim for relief under § 502(a)(1)(B) cannot alternatively proceed under § 1132(a)(3) because the availability of an "adequate" remedy "does not mean, nor does it guarantee, an adjudication in one's favor." Katz v. Comprehensive Plan of Group Ins., 197 F.3d 1084, 1088 (11th Cir. 2000).

  Similarly, the Fifth Circuit found the fact that the plaintiff did not prevail on his claim under § 1132(a)(1) did not make his alternative claim under § 1132(a)(3) viable. Tolson v. Avondale Industries, Inc., 141 F.3d 604, 610 (5th Cir. 1998). In addition, the Fourth Circuit held that § 502(a)(3) cannot be used where a claimant lacked standing to pursue a claim for allegedly wrongfully denied benefits because ERISA provided a remedy elsewhere, albeit one that the claimant lacked standing to pursue. Coyne & Delany Co. v. Blue Cross & Blue Shield, 102 F.3d 712, 716 (4th Cir. 1996). Numerous other courts have held that claims under § 502(a)(3) and § 502(a)(1)(B) are mutually exclusive. See, e.g., Hall v. Lhaco, Inc., 140 F.3d 1190, 1197 (8th Cir. 1998) (affirming the dismissal of a § 502(a)(3) claim where the plaintiff sought the same relief under § 502(a)(1)(B)); Forsyth v. Humana, Inc., 114 F.3d 1467, 1475 (9th Cir. 1997) (where plaintiff had sought relief under a specific section of ERISA, he could not also request relief under § 1132(a)(3) because he had an adequate remedy); Edwards v. Akzo Nobel, Inc., 103 F. Supp.2d 214, 220 (W.D.N.Y. 2000) (§ 502(a)(3) claim for recovery of benefits is improper due to availability of a ...

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