     Case: 15-30044       Document: 00513272790         Page: 1     Date Filed: 11/16/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                       No. 15-30044                                FILED
                                                                           November 16, 2015

CAROLE K. BROWDY, Medical Doctor,                                             Lyle W. Cayce
                                                                                   Clerk
               Plaintiff - Appellant

v.

HARTFORD LIFE & ACCIDENT INSURANCE COMPANY; GROUP
SHORT TERM DISABILITY AND LONG TERM DISABILITY PLAN FOR
EMPLOYEES OF AEROSPACE TESTING ALLIANCE-SALARIED,

               Defendants - Appellees




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:11-CV-818


Before STEWART, Chief Judge, and BARKSDALE and PRADO, Circuit
Judges.
PER CURIAM:*
       For this action under the Employee Retirement Income Security Act
(ERISA), 29 U.S.C. § 1001 et seq., primarily at issue is whether, based on a
discrepancy concerning an employee’s termination date, a disability-plan
administrator’s initial denial of benefits (ultimately, the benefits were


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                No. 15-30044
approved), constitutes a misrepresentation and resulting breach of fiduciary
duty. In district court, both sides moved for summary judgment. Challenging
the summary judgment awarded Hartford Life and Accident Insurance
Company, as well as seeking summary judgment in her favor, Carole K.
Browdy maintains the court erred, inter alia, in:    applying the breach-of-
fiduciary duty standard; and determining Hartford’s actions did not constitute
an actionable misrepresentation. AFFIRMED.
                                      I.
      Browdy was employed as a physician for Comprehensive Occupational
Resources, L.L.C. (CORE), a sub-contractor of Aerospace Testing Alliance
(ATA). CORE provided short-term and long-term disability (STD and LTD,
respectively) coverage through a plan issued by Hartford, whose role under the
plan was both administrator and insurer. Therefore, for a disability claim,
Hartford was responsible for both determining whether benefits should be
awarded and making any required payment.
      In August 2007, CORE terminated Browdy’s contract, and informed her
that her last day of employment would be 5 September 2007. On 30 August,
however, Browdy advised CORE she had to leave work indefinitely due to
chronic health issues; she did not return after that day. Hartford does not
contest the extent of Browdy’s disability at the time, which was severe and
included: degenerative disc disease; arthritis; morbid obesity; sleep apnea;
asthma; migraines; pituitary issues; and anemia.
      Browdy applied for disability on 5 September 2007, and requested
benefits from 31 August 2007 forward.      Hartford’s records initially listed
Browdy’s last day of work as 30 August 2007, and her date of disability as 31
August 2007. It preliminarily awarded benefits through 14 September 2007,
but required additional medical and employment information before approving
payments beyond that date. In January 2008, Hartford spoke with ATA’s
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                                  No. 15-30044
human-resources representative, who stated Browdy’s termination date was
31 August 2007.
      In February 2008, Hartford denied STD benefits based on Browdy’s last
day of work at CORE being 30 August 2007, but her date of disability being
the next day. In a letter stating the reasons for the denial, Hartford referenced
its above-described January 2008 telephone conversation with ATA; and, it
cited a portion of the plan entitled “When does your insurance terminate?”,
which stated, in relevant part:
            Your insurance will terminate on the earliest of:
            ...
            5. the date on which you cease to be an Active Full-
            time Employee in an eligible class, including:
                  a) temporary layoff;
                  b) leave of absence; or
                  c) work stoppage (including a strike or lockout);
                      or
                  d) the date your Employer ceases to be a
                     Participant Employer, if applicable.
Based on this, Hartford stated: “Since you were not an active employee at the
[ ] time you became disabled on [31 August 2007], you are not [eligible] to
receive short term disability”.   It requested repayment of its preliminary-
benefits award, and informed Browdy she had 180 days to appeal its decision.
      Browdy did not appeal promptly. In August 2008, according to Browdy’s
subsequent contested declaration in district court, discussed infra, she both
sold stock at a loss to cover expenses and applied for early benefits from her
pension plan with Dow Chemical Company, her previous employer. Browdy
maintains the pension’s value was permanently reduced due to that early
withdrawal. That same month, prior to the expiration of the 180-day deadline,
Browdy retained counsel and informed Hartford of her intent to appeal.
Following several extensions of the deadline at Browdy’s request, she appealed
in October 2008, eight months after Hartford’s denial-decision.
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        According to Hartford’s records, in considering Browdy’s administrative
appeal, Hartford telephoned ATA that December to verify the date of her
termination. ATA’s human-resources representative confirmed: her employ-
ment was terminated on 31 August 2007; and the decision was mutual, because
CORE could not accommodate Browdy’s worsening medical condition. ATA’s
representative advised, however, that there was no documentation to verify
this arrangement.       In the light of this, Hartford’s claims examiner
acknowledged:      “[A]lthough [Browdy’s] employer certifies that [Browdy’s]
employment terminated [on 31 August 2007], there are no records on file or
available that would confirm a termination prior to [5 September 2007]”. As a
result, the examiner stated it was “reasonable” to conclude Browdy was still
covered under the terms of the policy as of 31 August 2007, her date of
disability.   Accordingly, in a 9 December 2008 letter, Hartford informed
Browdy it would reverse its prior decision and award STD benefits from her
date of disability. Browdy received payment of her STD benefits in February
2009.
        In January 2009, in support of her LTD claim, Browdy submitted
information concerning her medical condition, retirement, and pension
benefits. The documents included a questionnaire, on which Browdy checked
a box indicating she was currently receiving retirement or pension benefits. At
the bottom of the form, Browdy advised: the pension was from Dow Chemical;
and she received $4,634.58 monthly.
        In April 2009, Hartford granted Browdy’s LTD claim, and approved
benefits for 24 months, starting from 14 December 2007. That June, Hartford
requested further documentation to determine whether Browdy could receive
LTD benefits beyond the initial 24-month period. Four months later, Hartford
requested Browdy repay $64,884.12 in “overpaid” benefits. Hartford based its
decision on Browdy’s August 2008 election to make withdrawals from her Dow
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                                No. 15-30044
pension, viewing those pension payments as “Other Income Benefits”, which,
pursuant to the policy, should have offset the LTD benefits she received.
Hartford advised it would not make further payments until Browdy repaid the
entire sum. Browdy appealed Hartford’s decision, maintaining the only reason
she made those pension-plan withdrawals was because Hartford initially
denied her STD benefits, leaving her without income. Hartford denied the
appeal.
      Browdy filed this action under ERISA § 502(a)(1)(B), 29 U.S.C.
§ 1132(a)(1)(B) (civil action to recover benefits under terms of plan). She
contended, inter alia, that Hartford: breached its fiduciary duty; acted in bad
faith; and was unjustly enriched by offsetting her LTD benefits.         Browdy
sought: a ruling her pension withdrawals did not offset her LTD benefits;
Hartford’s being required to pay retroactively any benefits it reduced for that
reason; and being awarded other damages, such as compensation for her
reduced retirement benefits, lost property value, and lost investments. Both
sides moved for summary judgment.
      In district court, as an exhibit to her statement of undisputed material
facts for the summary-judgment cross-motions, Browdy submitted a
declaration, maintaining the only reason she made withdrawals from her Dow
pension was because of Hartford’s denial of her STD benefits. In response,
Hartford moved in limine to exclude portions of Browdy’s statement of material
facts and declaration. Along that line, Hartford disputed Browdy’s statements
concerning her early withdrawal of pension funds, contending they were
“unsubstantiated, conclusory and speculative”.
      In addition, Hartford asserted in its brief in support of summary
judgment that Browdy could not pursue her breach-of-fiduciary-duty claim
under § 502(a)(1)(B), contending that section provided only for recovery of
benefits due under the plan, and did not contemplate extra-contractual
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                                  No. 15-30044
damages. Browdy conceded this point in her response brief. Moreover, in her
brief in support of her summary-judgment motion, she conceded: “Hartford
actually paid [her] the benefits for which she was entitled under the plan”. For
the first time, in her response brief in opposition to Hartford’s summary-
judgment motion, she asserted her claim could proceed under § 502(a)(3), 29
U.S.C. § 1132(a)(3) (civil action to “obtain other appropriate equitable relief”).
In its response brief to Browdy’s summary-judgment motion, Hartford objected
to her re-characterization of her claim as being both duplicative and untimely.
      Summary judgment was awarded Hartford. Browdy v. Hartford Life &
Accident Ins. Co., C.A. No. 11-818, 2014 WL 5500392 (M.D. La. 30 Oct. 2014).
In doing so, however, the district court rejected Hartford’s assertion that,
because it was not pleaded in her complaint, Browdy could not abandon her
§ 502(a)(1)(B) claim and proceed under § 502(a)(3). Id. at *6. On the other
hand, the court stated it was “inclined to agree” that Browdy was attempting
to re-package her § 502(a)(1)(B) claim as a duplicative § 502(a)(3) claim. Id.
Nonetheless, “out of an abundance of caution”, it analyzed Browdy’s § 502(a)(3)
fiduciary-duty claim.    Id.   Although the court concluded Hartford was a
fiduciary, it held Hartford did not breach any duty to Browdy because it did
not make a bad-faith and intentional misrepresentation. Id. at *6–8. The court
cited evidence Hartford had initially denied Browdy’s STD claim due to a
misunderstanding about the end-date of Browdy’s employment, but had
reversed its decision when it received new information. Id. at *8.
      In addition, the court rejected Browdy’s contention that Hartford’s
actions were motivated by its conflict of interest as both plan administrator
and insurer. Id. at *10. It similarly rejected Browdy’s assertion that Hartford
was unjustly enriched by off-setting her LTD benefits with her Dow pension
payments, because the plan provided for the offset, and no evidence in the
record showed Hartford knew about Browdy’s pension plan when it denied her
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                                 No. 15-30044
STD benefits in February 2008. Id. Moreover, the court concluded Browdy
could not recover for Hartford’s failure to timely approve her benefits, and
determined ERISA preempted Browdy’s state-law claims.            Id. at *10–11.
Finally, it dismissed Browdy’s claims against the plan itself because she
abandoned them. Id. at *11. Browdy’s motion for reconsideration was denied
on 18 December 2014.
                                       II.
      In challenging the summary judgment awarded Hartford, as well as
seeking its being awarded to her, Browdy contends the court erred by:
articulating the breach-of-fiduciary-duty standard as one of bad faith; ruling
she presented no facts in support of misrepresentation; and failing to consider
Browdy’s evidence in a cumulative fashion. Hartford reiterates, inter alia, that
Browdy’s claim is foreclosed because she impermissibly re-packaged her
original § 502(a)(1)(B) claim as one under § 502(a)(3). We need not reach
Hartford’s contention because, even assuming, arguendo, Browdy’s claim may
be considered under § 502(a)(3), summary judgment for Hartford was proper.
Similarly, because Browdy presented no evidence of misrepresentation
constituting a breach of fiduciary duty, we need not reach her assertions
concerning the court’s claimed improper application of a bad-faith standard.
      An ERISA summary judgment is reviewed de novo, applying the same
standards as the district court. Cooper v. Hewlett-Packard Co., 592 F.3d 645,
651 (5th Cir. 2009). A movant is entitled to summary judgment if she shows
“there is no genuine dispute as to any material fact” and she “is entitled to
judgment as a matter of law”. Fed R. Civ. P. 56(a). In general, “[t]he party
seeking summary judgment bears the burden of demonstrating an absence of
evidence to support the non-movant’s case”. Martinez v. Bally’s La., Inc., 244
F.3d 474, 476 (5th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). “Once the movant shows that no genuine [dispute] of material fact
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                                  No. 15-30044
exists, the burden shifts to the nonmovant to set forth specific facts to establish
a genuine [dispute] of material fact, without merely resting on allegations and
denials.” Id.
      “When parties file cross-motions for summary judgment, we review each
party’s motion independently, viewing the evidence and inferences in the light
most favorable to the nonmoving party.” Green v. Life Ins. Co. of N. Am., 754
F.3d 324, 329 (5th Cir. 2014). Each motion is, of course, reviewed de novo.
E.g., Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 213 &
n.1 (5th Cir. 1999).
      This being an ERISA action, the applicable underlying ERISA standard
of review (ERISA standard) informs our de novo review of the summary-
judgment motions. See Barhan v. Ry-Ron Inc., 121 F.3d 198, 201–02 (5th Cir.
1997). Were this treated as a § 502(a)(1)(B) action, as Hartford contends, the
ERISA standard for Hartford’s denial of benefits would be abuse of discretion.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (denial of
benefits claim under § 502(a)(1)(B) reviewed de novo, but, if plan affords
administrator discretion to determine benefits eligibility, a more deferential
standard applies).
      But, as stated supra, Browdy’s claims will be analyzed under § 502(a)(3).
Although Firestone concerned a denial of benefits under § 502(a)(1)(B), some
courts of appeals have extended its application of a deferential standard of
review to § 502(a)(3) claims. See Admin. Comm. of Wal-Mart. Assocs. Health
& Welfare Plan v. Willard, 393 F.3d 1119, 1123 (10th Cir. 2004); Bd. of Admin.
v. Huntsman, 187 F.3d 634 at *3 (6th Cir. 1999) (unpublished).              Those
decisions, however, did not concern a § 502(a)(3) breach-of-fiduciary-duty
claim, such as Browdy’s. See Willard, 393 F.3d at 1122–23 (distinguishing
matter from breach-of-fiduciary-duty claim where de novo standard applied).
Therefore, the ERISA standard for determining whether Hartford breached its
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                                  No. 15-30044
fiduciary duty is de novo, the same as the controlling standard for reviewing
the cross-motions for summary-judgment.
                                        A.
      Regarding Browdy’s assertion that the district court applied an incorrect
breach-of-fiduciary-duty standard, ERISA § 502(a)(3) permits a civil action “by
a participant, beneficiary, or fiduciary [ ] to enjoin any act or practice which
violates any provision of this subchapter or the terms of the plan, or [ ] to obtain
other appropriate equitable relief [ ] to redress such violations or [ ] to enforce
any provisions of this subchapter or terms of the plan”. 29 U.S.C. § 1132(a)(3).
ERISA imparts the same standards of conduct upon fiduciaries as does the
common law of trusts. Martinez v. Schlumberger, Ltd., 338 F.3d 407, 411 (5th
Cir. 2003). Accordingly, a plan administrator must discharge his duties “with
the care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like character and with
like aims”. Id. at 412; 29 U.S.C. § 1104(a)(1)(B).
      Conduct typically constituting a plan administrator’s breach of fiduciary
duty includes deceptive practices or misrepresentations. Bodine v. Emp’rs Cas.
Co., 352 F.3d 245, 251 (5th Cir. 2003) (citing Varity Corp. v. Howe, 516 U.S.
489 (1996)). Therefore, if a fiduciary makes a statement concerning the future
of a participant’s plan benefits, it has a duty to refrain from making
misrepresentations. Martinez, 338 F.3d at 424. It stands that “[l]ying is
inconsistent with the duty of loyalty owed by all fiduciaries and codified in
section 404(a)(1) of ERISA”. Varity, 516 U.S. at 506 (alteration in original).
Such deceptions include knowing and significant falsehoods committed in
order to save money at a beneficiary’s expense. Id.; Martinez, 338 F.3d at 425.




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                                  No. 15-30044
In practical application, misrepresentations typically concern the failure of a
plan administrator to communicate key plan terms to a beneficiary.             See
CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011); Martinez, 338 F.3d at 424–25.
      In her briefs here, Browdy asserts Hartford’s actions amounted to a
breach of fiduciary duty, but does not specify whether that claimed breach was
a violation of the duty of loyalty or of care. Based upon her contentions (which
are premised on her belief that Hartford denied her STD benefits in an attempt
to unjustly enrich itself), Browdy is articulating a breach of the duty of loyalty.
In so doing, Browdy concedes in her reply brief that mere negligence is
insufficient to establish that type of breach of fiduciary duty. See Hobbs v.
Baker Hughes Oilfield Operations, Inc., 294 F. App’x 156, 158 (5th Cir. 2008)
(citing Vallone v. CNA Fin. Corp., 375 F.3d 623, 642 (7th Cir. 2004)). Examples
of such negligence include clerical oversights. See id. (citing Bodine, 352 F.3d
at 251). In the light of Browdy’s concession, and her breach of the duty of
loyalty contention, we need not consider whether other types of breach-of-
fiduciary-duty claims (duty of care) may be premised on a fiduciary’s
negligence. Moreover, as discussed infra, Browdy fails to present evidence of
any negligent conduct by Hartford.
                                        1.
      Browdy’s characterization of her claim is somewhat contradictory. On
the one hand, she maintains: the issue is one of breach of fiduciary duty,
actionable under § 502(a)(3); and Hartford’s denial of benefits alone constitutes
the misrepresentation. Browdy, however, does not point to any precedent in
support of this assertion, or how it would affect the fiduciary-duty standard,
nor have we found any. In so doing, she concedes, as she did in district court,
that her claim cannot be pursued under § 502(a)(1)(B) (civil action to recover
benefits under terms of plan). On the other hand, the very essence of her
position is that Hartford ignored the information in its possession and initially
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                                  No. 15-30044
wrongfully denied her STD benefits, which is necessarily a § 502(a)(1)(B)
matter. As discussed supra, although Hartford urges us, in the light of Amara,
to conclude Browdy’s § 502(a)(3) claim is nothing more than an impermissibly
re-packaged § 502(a)(1)(B) claim, we need not consider this contention. Again,
even assuming, arguendo, Browdy presented a proper breach-of-fiduciary-duty
claim under § 502(a)(3), summary judgment for Hartford was proper.
                                        2.
      Additionally, Browdy contends the court incorrectly articulated the
fiduciary-duty standard as requiring bad faith; Hartford urges otherwise,
citing, inter alia, the Seventh Circuit’s decision in Vallone, 375 F.3d at 623. As
discussed infra, however, Browdy presents no evidence of a misrepresentation.
Accordingly, as stated supra, we need not reach whether bad faith is required.
                                       B.
      For her other issue, Browdy maintains the court erred in ruling she
failed to present facts in support of her claim. Prior to determining that issue
in the light of the articulated fiduciary-duty standard, we must address
Hartford’s contentions concerning claimed deficiencies in both Browdy’s
complaint and her declaration in support of her statement of undisputed
material facts.
                                        1.
      At oral argument here, Hartford raised two points concerning Browdy’s
district-court papers. First, it contended this action should be barred because
she changed the nature of relief sought (from § 502(a)(1)(B) to § 502(a)(3)) at
the summary-judgment stage, but without amending her complaint. Second,
it reiterated the objections it raised in district court about Browdy’s
declaration. For the following reasons, both contentions are waived.




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                                   No. 15-30044
                                         a.
         Although Hartford contended in district court that Browdy’s belated re-
characterization of her claim, without leave to amend, barred this action, it did
not make that contention in its brief here. Generally, “a party waives any
argument that it fails to brief on appeal”. United States v. Whitfield, 590 F.3d
325, 346 (5th Cir. 2009).       An exception exists, however, where failure to
consider the non-briefed issue would result in a miscarriage of justice. Id.
Failure to consider Hartford’s assertion would not result in such a miscarriage
because the judgment in its favor is affirmed.
                                         b.
         Hartford moved in limine that the district court not consider portions of
Browdy’s declaration in deciding the cross-motions for summary judgment.
The court awarded summary judgment to Hartford; but, in doing so, did not
rule on the merits of its motion in limine. See Browdy, 2014 WL 5500392. At
oral argument here, Hartford noted the motion was denied as moot; in that
regard, “[t]he denial of a motion by the district court, although not formally
expressed, may be implied by the entry of a final judgment”. Norman v. Apache
Corp., 19 F.3d 1017, 1021 (5th Cir. 1994) (emphasis in original). But, Hartford
did not contend, in its brief here, that the court’s denial of the motion was in
error.
                                         2.
         Turning to our de novo review of Browdy’s claim, she fails to demonstrate
the requisite genuine dispute of material fact for the summary judgment
awarded Hartford. As noted above, although Browdy characterizes Hartford’s
conduct as a breach of fiduciary duty, she at times treats her claim as one for
wrongful denial of benefits. For example, she cites our court’s decision in
Schexnayder v. Hartford Life & Accident Insurance Co. for the proposition that
Hartford’s internal conflict of interest as plan administrator and insurer
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                                  No. 15-30044
motivated it to make a misrepresentation to enhance its profits. 600 F.3d 465,
469–70 (5th Cir. 2010). Schexnayder, however, concerned the administrator’s
decision to terminate benefits, not a misrepresentation. See id. at 467–68.
      This notwithstanding, Browdy maintains a breach of fiduciary duty is
illustrated by Hartford’s: disregarding evidence of her disability in order to
avoid paying benefits (ostensibly due to its conflict of interest); fabrication of a
dispute over the end-date of her termination to justify withholding payment;
and taking longer than allowed to decide her claim. She additionally contends,
without citing relevant authority, that the court erred by considering her above
positions in an isolated fashion, as opposed to viewing them as part of a single
course of conduct (cumulative contention).
      A review of the administrative record undercuts Browdy’s position. Her
Hartford claim-file notes: Browdy’s last day worked was 30 August 2007;
according to ATA, her termination date was 31 August 2007; and, her claimed
date of disability was 31 August 2007.        Pursuant to the policy, Browdy’s
coverage terminated when she ceased work as an “Active Full-time Employee”.
Because Hartford determined initially that Browdy was not an active employee
as of 31 August 2007, the same day as her date of disability, it denied her STD
claim. Following Browdy’s appeal from that denial, ATA confirmed Browdy’s
termination date was 31 August 2007, but stated there was no supporting
documentation.     Therefore, Hartford concluded:       although ATA reiterated
Browdy’s termination date was 31 August 2007, the lack of documentation
meant it was reasonable to conclude she was still employed through 5
September 2007, the date of her original termination letter.
      Nothing about the above scenario creates a genuine dispute of material
fact regarding a misrepresentation by Hartford, or its failure to exercise the
earlier discussed “care, skill, prudence, and diligence under the circumstances
then prevailing that a prudent man acting in a like capacity and familiar with
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such matters would use in the conduct of an enterprise of a like character and
with like aims”. Martinez, 338 F.3d at 412. Furthermore, as noted supra,
although Browdy extensively briefs what she maintains is the appropriate
fiduciary-duty standard, she fails to cite any precedent in support of her
assertion     that   Hartford’s   denial        of   benefits    alone   constitutes   a
misrepresentation. As Browdy concedes, as discussed supra, mere negligence
is insufficient to support her breach-of-fiduciary-duty claim (again, she frames
her claim as a violation of the duty of loyalty). Hobbs, 294 F. App’x at 158.
Regardless of the posture of Browdy’s claim, she fails to demonstrate a genuine
dispute of material fact on whether Hartford’s actions were anything but
reasonable.
       Therefore, despite Browdy’s assertions that Hartford perpetrated a
scheme to unjustly enrich itself at her expense, no genuine dispute of material
fact exists to preclude summary judgment against her misrepresentation
claim. Further, although Browdy notes Hartford took longer than the 105 days
required by law to issue a decision, see 29 C.F.R. § 2560.503–1(f)(3), she offers
no explanation for why she did not promptly appeal, choosing instead to
withdraw from her pension and appeal nearly eight months after Hartford’s
decision. Finally, as to Browdy’s cumulative contention, she cites no precedent
to support how several deficient contentions, when viewed together, entitle her
to relief.
       Contrary to Browdy’s contentions, and as Hartford persuasively noted at
oral argument, its conduct appears to reflect how, in reversing its claim denial,
a properly-functioning administrative-appeal process should work.                      A
determination, as Browdy urges, that reversal of a benefits-denial alone
constitutes a misrepresentation, warranting extra-contractual damages,
would, inter alia, remove any incentive for plan administrators to reconsider
prior decisions adverse to a claimant.
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                           No. 15-30044
                                III.
  For the foregoing reasons, the judgment is AFFIRMED.




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