                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 16a0533n.06

                                           No. 15-4293

                                                                                         FILED
                         UNITED STATES COURTS OF APPEALS                           Sep 14, 2016
                              FOR THE SIXTH CIRCUIT                            DEBORAH S. HUNT, Clerk

LLOYD BROWN, III,                                        )
    Plaintiff-Appellee,                                  )
                                                         )
v.                                                       )
                                                         )
UNITED OF OMAHA LIFE INSURANCE                           )       ON APPEAL FROM THE
COMPANY,                                                 )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE SOUTHERN
       Defendant-Appellant,                              )       DISTRICT OF OHIO
                                                         )
and                                                      )                   OPINION
                                                         )
WEST SIDE TRANSPORT, INC.,                               )
                                                         )
       Defendant.                                        )



       BEFORE:         KEITH, COOK, and STRANCH, Circuit Judges.

       STRANCH, Circuit Judge. Lloyd Brown III alleged, originally in state court, that

Defendant-Appellant United of Omaha Life Insurance Company and Defendant West Side

Transport, Inc. wrongfully denied him life insurance benefits. Following United’s removal of

the case to federal court, Brown III asserted contractual and equitable state law claims and, in the

alternative, causes of action under the Employee Retirement Income Security Act of 1974

(ERISA). The district court concluded that Brown III’s state law claims against United and West

Side were preempted by ERISA, granted summary judgment to Brown III on the merits of his

ERISA § 502(a)(1) claim against United, and found that Brown III was “not entitled to relief

under” ERISA § 502(a)(3) “because § 502(a)(1)(B) fully provides a means for the relief sought.”
No. 15-4293
Brown v. United of Omaha

The district court then awarded Brown III $181,666.67 in damages for benefits due him under

United’s life insurance policy, prejudgment interest, and $27,040.00 in attorneys’ fees. United

appeals the judgment and remedies awarded.

       For the reasons below, we AFFIRM the district court’s grant of summary judgment to

Brown III on the merits of his § 502(a)(1) claim, as well as its awards of prejudgment interest

and attorneys’ fees; REVERSE the district court’s summary judgment to United on Brown III’s

§ 502(a)(3) claim; and REMAND with instructions to determine the amount of Brown III’s

award under 502(a)(1) and to determine whether Brown III is entitled to other appropriate

equitable relief under § 502(a)(3) for a separate and distinct injury.

                                     I.      BACKGROUND

       Lloyd Brown II, Plaintiff-Appellee’s father, worked as a truck driver for West Side from

January 2011 until his death on November 27, 2012. West Side offered employees an optional

term life insurance policy through Hartford Insurance Company. On December 16, 2011, Brown

II submitted a “Benefit Election Authorization” for $30,000 of life insurance, naming Brown III

as his beneficiary, through Hartford’s automated call-in system. Hartford approved the life

insurance policy with an effective date of February 1, 2012.

       West Side subsequently terminated its relationship with Hartford, also effective February

1, after which it instead offered optional term life insurance through United. Despite the switch

in providers, on February 1 West Side began deducting $4.68 per week in life insurance

premiums, labeled as “OPT LIFE INSUR,” from Brown II’s paychecks. Pursuant to the terms of

United’s policy, this amount corresponds to $30,000 of life insurance coverage—the amount

applied for by Brown II in December 2011. From at least March 21 until Brown II’s death on

November 27, however, West Side withheld $28.34 per week, which corresponds to $181,666.67


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Brown v. United of Omaha

of coverage. Brown III alleges that this increase in the amount of deductions evidences a request

by Brown II to increase the value of his policy.

       Following Brown II’s death on November 27, 2012, Brown III filed a claim with United

for the benefits allegedly due him. On February 20, 2013, United refused Brown III’s request

because Brown II had failed to submit “evidence of insurability.”          Employees insured by

Hartford prior to United’s takeover became insured by United without submitting evidence of

insurability on February 1. But United explained that Brown II, despite “verbally enroll[ing],”

“did not have voluntary life insurance coverage” with Hartford because West Side cancelled its

agreement with Hartford effective February 1, the date Brown II’s coverage was to take effect.

Brown III filed an administrative appeal, which United rejected for the same reasons on May 9,

2013, concluding that the premiums West Side had “collected . . . in error” should be refunded.

Brown III then filed the present action.

                               II.     STANDARD OF REVIEW

       United challenges the district court’s grant of summary judgment to Brown III on his

§ 502(a)(1) ERISA claim. We review grants of summary judgment de novo. See V & M Star

Steel v. Centimark Corp., 678 F.3d 459, 465 (6th Cir. 2012). Summary judgment is proper only

when the evidence—taken with all reasonable inferences drawn in favor of the nonmoving

party—“establishes that there is no genuine issue as to any material fact,” such that the movant is

entitled to judgment as a matter of law. Id. (citing Fed. R. Civ. P. 56(c); Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). There exist genuine issues of material

fact when there are “disputes over facts that might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).




                                                   -3-
No. 15-4293
Brown v. United of Omaha

       United also appeals the district court’s award of prejudgment interest and attorney’s fees

to Brown III. We review such awards under an abuse of discretion standard. Ford v. Uniroyal

Pension Plan, 154 F.3d 613, 619–20 (6th Cir. 1998) (citations omitted). “An abuse of discretion

occurs when the district court relies on erroneous findings of fact, applies the wrong legal

standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear

error of judgment.” Schumacher v. AK Steel Corp. Ret. Accumulation Pension Plan, 711 F.3d

675, 681 (6th Cir. 2013) (quoting Pipefitters Local 636 Ins. Fund v. Blue Cross Blue Shield of

Mich., 654 F.3d 618, 629 (6th Cir. 2011)).

                                        III.     ANALYSIS

       “ERISA comprehensively regulates, among other things, employee welfare benefit plans

that, ‘through the purchase of insurance or otherwise,’ provide medical, surgical, or hospital care,

or benefits in the event of sickness, accident, disability, or death.” Pilot Life Ins. Co. v. Dedeaux,

481 U.S. 41, 44 (1987) (quoting 29 U.S.C. § 1002(1)). The district court determined that the

optional term life insurance policy offered by United is an employee benefit plan regulated by

ERISA—a decision unchallenged on appeal. ERISA § 502(a)(1) allows plan beneficiaries to

bring a civil action to, among other things, “recover benefits due to him under the terms of [a]

plan . . . .” 29 U.S.C. § 1132(a)(1)(B). Section 502(a)(3) provides for “other appropriate

equitable relief.” Id. § 1132(a)(3). Brown III seeks recovery under § 502(a)(1) and, to the extent

he is unsuccessful, alternatively under § 502(a)(3), as well as prejudgment interest and attorneys’

fees. We address each of these issues in turn.




                                                 -4-
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Brown v. United of Omaha

       A.      Recovery of Benefits under ERISA § 502(a)(1).

               1. Legal Standard.

       Where a plan grants a plan administrator “discretionary authority to determine eligibility

for benefits or to construe the terms of the plan,” as United’s policy does, a denial of benefits is

reviewed under an “arbitrary and capricious” standard.        Shelby Cty. Health Care Corp. v.

S. Council of Indus. Workers Health & Welfare Tr. Fund, 203 F.3d 926, 933 (6th Cir. 2000)

(quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)); Perez v. Aetna Life

Ins. Co., 150 F.3d 550, 555 (6th Cir. 1998) (en banc)). Under this “highly deferential” standard,

we must affirm the denial of benefits unless it is arbitrary and capricious; if the decision is

“rational in light of the plan’s provisions” and “based on a reasonable interpretation of the plan,”

it must be upheld. Id. at 933–34 (citations omitted). We review de novo a district court’s

application of the arbitrary and capricious standard.      See Evans v. UnumProvident Corp.,

434 F.3d 866, 875 (6th Cir. 2006) (citing Whitaker v. Hartford Life & Accident Ins. Co.,

404 F.3d 947, 949 (6th Cir. 2005)).

       The arbitrary and capricious standard “is not . . . without some teeth.” McDonald v. W.-

S. Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003) (citation omitted). “Congress enacted ERISA

‘to promote the interests of employees and their beneficiaries in employee benefit plans and to

protect contractually defined benefits.’”    Shelby Cty. Health Care Corp., 203 F.3d at 934

(quoting Firestone Tire & Rubber Co., 489 U.S. at 113). Accordingly, “the federal courts do not

sit in review of the administrator’s decisions only for the purpose of rubber stamping those

decisions.” Evans, 434 F.3d at 876 (citing Moon v. Unum Provident Corp., 405 F.3d 373, 379

(6th Cir. 2005)). A plan administrator must “discharge its duties with respect to the plan in

accordance with the documents and instruments governing the plan” and, “[i]n interpreting the


                                                -5-
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Brown v. United of Omaha

provisions of a plan, . . . adhere to the plain meaning of its language, as it would be construed by

an ordinary person.” Shelby Cty. Health Care Corp., 203 F.3d at 934 (citations omitted).

       Where a plan administrator “both determines whether an employee is eligible for benefits

and pays benefits out of its own pocket,” as United did here, “this dual role creates a conflict of

interest,” and “a reviewing court should consider that conflict as a factor in determining whether

the plan administrator has abused its discretion in denying benefits.” Metro. Life Ins. Co. v.

Glenn, 554 U.S. 105, 108 (2008) (citing Firestone Tire & Rubber Co., 489 U.S. at 115). While

“[v]arious circumstances affect the weight we accord the conflict”—including whether there is

“a long history of biased claims administration” or “active steps to reduce potential bias and to

promote accuracy,” Helfman v. GE Grp. Life Assurance Co., 573 F.3d 383, 392–93 (6th Cir.

2009) (citing Glenn, 554 U.S. at 117)—“the potential for self-interested decision-making is

evident,” and “[t]he reviewing court looks to see if there is evidence that the conflict in any way

influenced the plan administrator’s decision,” Evans, 434 F.3d at 876 (citation omitted).

               2. Denial of Benefits.

       United maintains that its decision to deny benefits to Brown III was reasonable and

rational, and supported by substantial evidence and the plain language of its plan. United argues,

as it did when it denied Brown III benefits, that it agreed to assume the risk of any policies in

effect under Hartford’s prior plan as of January 31, 2012—the day before West Side changed its

providers. Although applied for in December 2011, Brown II’s coverage with Hartford had an

effective date of February 1. According to United, because Brown II’s coverage had not taken

effect on January 31 it was not “grandfathered in,” and thus he was required to submit evidence

of insurability to be covered, which he did not do. The essential question before us is whether




                                                -6-
No. 15-4293
Brown v. United of Omaha

United’s interpretation of its plan as requiring Brown II to submit evidence of insurability to be

covered was arbitrary and capricious.

       Based on isolated language in the terms of the plan, Brown III raises an initial argument

that United has a duty to affirmatively request evidence of insurability when it is required. For

example, the plan defines “evidence of insurability” as “proof of good health acceptable to Us.

This proof may be obtained through questionnaires, physical exams or written documents, as

required by us.” It is undisputed that United never requested evidence of insurability and also

that Brown II failed to submit such. But United responds that “as required by us” could be read

merely to apply discretion to the type of evidence required—questionnaires, physical exams, or

written documents—not to the requirement itself absent an affirmative request.         The other

provisions cited by Brown III are similarly ambiguous, and elsewhere the plan could be read to

require evidence of insurability as necessary for coverage, with or without a request. Brown III

relies on Silva v. Metropolitan Life Insurance Co., 762 F.3d 711 (8th Cir. 2014), but we find the

case inapposite because it applied an abuse of discretion standard, rather than an arbitrary and

capricious standard, while finding genuine issues of material fact as to the meaning of “evidence

of insurability” and whether the claimant had met the requirement. 762 F.3d at 717. We cannot

say that United’s interpretation of that plan language is arbitrary and capricious.

       Brown III then asserts that the plan did not require evidence of insurability in this

situation. Relevant provisions are found in a section of the plan titled “GUARANTEE ISSUE

AMOUNT(S) AND EVIDENCE OF INSURABILITY,” which contains five subsections that list

circumstances for which “Evidence of Insurability is required.” United identifies two of the five

subsections as requiring Brown II to submit evidence of insurability. First, subsection d) states

that evidence of insurability is required for “an Employee or Dependent who was eligible for


                                                 -7-
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Brown v. United of Omaha

insurance under a Prior Plan but did not elect such insurance.” Inversely stated, evidence of

insurability is not required of an employee who was “eligible for” and “elected” insurance under

the prior plan. The district court determined that subsection d) did not require Brown II to

submit evidence of insurability because he was eligible for insurance with Hartford and elected

to participate in the prior plan through his December 2011 phone call.

       United first incorrectly criticizes the application of this provision as the district court’s

own, not originally advanced by Brown III, and thus robbing United of an opportunity to

respond. As Brown III points out, he did make this argument before the district court. United

also complains that the district court improperly substituted its own interpretation of “elected,”

which it argues is ambiguous, undefined, and could be interpreted reasonably to require that

coverage be in effect under the prior plan. See Moos v. Square D Co., 72 F.3d 39, 42 (6th Cir.

1995) (“[W]e grant plan administrators who are vested with discretion in determining eligibility

for benefits great leeway in interpreting ambiguous terms.”).

       Nevertheless, in interpreting terms of a plan, the plan administrator must “adhere to the

plain meaning of its language, as it would be construed by an ordinary person.” Shelby Cty.

Health Care Corp., 203 F.3d at 934 (citations omitted). Therefore, we first examine the plain

meaning of the term “elect.” Merriam-Webster defines the transitive verb “elect” as “to make a

selection of” or “to choose (as a course of action) especially by preference.” Elect, Merriam-

Webster.com, http://www.merriam-webster.com/dictionary/elect (last visited August 8, 2016).

Black’s Law Dictionary defines “election” as “[t]he exercise of a choice.” Election, Black’s Law

Dictionary (10th ed. 2014). Elsewhere in the record, moreover, United used the term “elected”

to mean “selected” or “chose”—not that coverage was in effect or an employee was insured—in

accordance with the dictionary definitions above. Even the form memorializing Brown II’s


                                                -8-
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Brown v. United of Omaha

voice authorization was titled “Benefit Election Authorization.” The arbitrary and capricious

standard of review allows plan administrators to interpret the plan reasonably, it does not allow

them to modify the plan terms. “Interpretation and modification are different; the power to do

the first does not imply the power to do the second.” Cozzie v. Metro. Life Ins. Co., 140 F.3d

1104, 1108 (7th Cir. 1998). Here, as evidenced by the plain meaning of the word and the plan

itself, the term “elect” most likely means “select” or “choose.” We reject as arbitrary United’s

modification of the term.

       United lastly asserts that interpreting “elected” not to require coverage to be in effect

would lead to an absurd result—namely, that Hartford would have owed Brown III benefits had

Brown II died between December 16, 2011 and February 1, 2012. But this argument misreads

the district court’s interpretation. Whether Brown II was “covered” under the prior plan is

irrelevant to whether he was required to submit evidence of insurability to be covered under

United’s plan: all that matters is that he “elected” insurance with Hartford. Therefore, to deny

Brown III’s claim on the basis that he was required to submit evidence of insurability under

subsection d), United would have had to arbitrarily and capriciously ignore or modify the term

“elected.”

       The second subsection United identifies as requiring Brown II to submit evidence of

insurability is subsection e), which requires such evidence when “an Employee or Dependent

whose amount of insurance elected under the Policy is in excess of the amount of insurance that

was in-force under a Prior Plan the day before the Policy Effective Date, unless during a

Subsequent Enrollment Period or as otherwise stated or allowed in the Policy.” Because Brown

II had no coverage under the prior plan, United argues, the $30,000 he elected was “in excess of

the amount of insurance that was in-force under a Prior Plan,” requiring evidence of insurability.


                                               -9-
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Brown v. United of Omaha

       Emphasizing that subsection e) directs comparison of the amount elected under the plan

to the amount “in-force” under the prior plan, Brown III responds that subsection e) is

inapplicable where the employee’s coverage was not in effect under the prior plan. More

persuasive, though, is that subsection e) allows for exceptions to its requirement “as otherwise

stated or allowed in the Policy.”     The guarantee issue amount clause provides one such

exception. That clause states that an employee’s “Guarantee Issue Amount,” defined elsewhere

as “the amount of life insurance We may issue without requiring Evidence of Insurability,”

       is 5 times Your Annual Earnings or $150,000, whichever is less, unless You were
       insured under a Prior Plan. If you were insured under a Prior Plan, Your
       Guarantee Issue Amount is equal to the amount of insurance that was in-force for
       You under a Prior Plan the day before the Policy Effective Date.

Pursuant to the guarantee issue amount, because Brown II was not insured under the prior plan,

his initial election of $30,000 does not require evidence of insurability, as it is less than

$150,000. See Insured, Black’s Law Dictionary (10th ed. 2014) (defining the noun “insured” as

“someone who is covered or protected by an insurance policy”). Thus, United’s interpretation

that Brown II was required to submit evidence of insurability under subsection e), which

provides an exception for the guarantee issue amount, was arbitrary and capricious.

       Because United arbitrarily and capriciously found that Brown II was not covered by its

plan, we affirm the district court’s grant of summary judgment to Brown III on the merits of his

§ 502(a)(1) claim.

              3. Amount of Benefits Due.

       United next challenges the district court’s conclusion as to the amount of benefits due to

Brown III under the policy. United’s position is that, assuming Brown II was covered under the

plan, it still limits Brown III’s benefits to $30,000 because “there is no evidence in the record

that [Brown II] ever requested any more.” United points to censuses in the administrative record

                                              -10-
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Brown v. United of Omaha

that list Brown II as having $150,000 in coverage to argue that “West Side may have flipped

[Brown II’s] coverage information with that of the employee listed directly above him,” who had

previously had that amount before being listed with $0. In contrast, the district court relied on

the amount deducted from Brown II’s paycheck at the time of his death: “$122.81 per month for

life insurance at a rate of $0.676 per $1000 of coverage—resulting in $181,666.67.” Brown III

maintains that United’s theory that West Side mistakenly listed Brown II as having $150,000

does not explain why an even higher amount worth $181,666.67 in coverage was deducted

starting in March 2011. Brown III asserts that the increase in deductions is evidence enough of a

request by Brown II, as otherwise he would have objected. We agree.

       The next question we must answer is whether Brown II was required to submit evidence

of insurability to increase the amount of his coverage. United argues that he was, relying on

subsections b) and c) of the “EVIDENCE OF INSURABILITY” section, as well as the “WHEN

ELECTION CHANGES ARE PERMITTED” section.                   Subsection b) requires evidence of

insurability for “any amount of insurance elected in excess of a Guarantee Issue Amount for the

Employee or Dependent,” and subsection c) requires it for “any increase in the amount of

insurance after the initial election of insurance for the Employee or Dependent, unless during a

Subsequent Enrollment Period or as otherwise stated or allowed in the Policy.”               The

“ELECTION CHANGES” section states, “An Employee may elect, drop, increase, decrease or

change insurance as allowed by the Policyholder. Any election of or increase in insurance for an

Employee or Dependent will require Evidence of Insurability unless otherwise stated or allowed

in the Policy.”

       But because, as explained above, Brown II’s guarantee issue amount was $150,000, or

five times his annual salary (whichever is less), none of these provisions required Brown II to


                                              -11-
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Brown v. United of Omaha

submit evidence of insurability for an increase up to that amount. Subsection b) hinges entirely

on the guarantee issue amount, and subsection c) and the “ELECTION CHANGES” section—

like subsection e)—allow an exception for the guarantee issue amount. United’s interpretation

that Brown II’s guarantee issue amount was $30,000 rests on its interpretation that he was

“insured” under the prior plan, which for the reasons explained above is an arbitrary and

capricious interpretation. All of these subsections, however, do appear to require evidence of

insurability to the extent Brown II’s coverage increase surpassed $150,000 or five times his

annual salary, “whichever is less.” Because there is no evidence of Brown II’s annual salary in

the record, we cannot say with fair assurance that $150,000 was the lesser amount. 1

Accordingly, we remand for the district court to determine whether Brown II was entitled to

$150,000 or some lesser amount as a result of his annual salary.

       B.      Other Equitable Relief under ERISA § 502(a)(3).

       To the extent Brown III is unsuccessful on his denial of benefits claim under § 502(a)(1),

he relies on a breach of fiduciary duty theory to assert that he is entitled to “other appropriate

equitable relief” under § 502(a)(3)—ERISA’s “catch-all provision.”2 A plaintiff cannot use

ERISA’s catch-all provision to “repackage” a § 502(a)(1) denial-of-benefits claim as an action

for breach of fiduciary duty, or to pursue a “duplicative or redundant remedy.” Rochow v. Life

Ins. Co. of N. Am., 780 F.3d 364, 372–73 (6th Cir. 2015) (en banc).



       1
         At oral argument counsel for Brown III estimated Brown II’s salary to be around
$55,000 annually. United disputed this calculation at oral argument and the record is silent on
this issue.
       2
         Although Brown III did not cross-appeal the district court’s judgment against him on
this issue, an “appellee may, without taking a cross-appeal, urge in support of a decree any
matter in the record,” United States v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924) (citations
omitted), because “[a] prevailing party seeks to enforce a district court’s judgment, not its
reasoning,” Jennings v. Stephens, 135 S. Ct. 793, 796 (2015) (citation omitted).
                                              -12-
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Brown v. United of Omaha

       A claimant can pursue a breach-of-fiduciary-duty claim under § 502(a)(3),
       irrespective of the degree of success obtained on a claim for recovery of benefits
       under § 502(a)(1)(B), only where the breach of fiduciary duty claim is based on
       an injury separate and distinct from the denial of benefits or where the remedy
       afforded by Congress under § 502(a)(1)(B) is otherwise shown to be inadequate
       [to make the claimant whole].

Id. at 372. Where a claimant asserts an injury “separate and distinct from the denial of benefits,”

then dual ERISA claims and remedies may be appropriate. See id; see also Gore v. El Paso

Energy Corp. Long Term Disability Plan, 477 F.3d 833, 840–42 (6th Cir. 2007) (holding that

claimant may bring both a § 502(a)(1) and § 502(a)(3) claim where he alleges “two separate and

distinct injuries”: a standard denial-of-benefits injury pursuant to the plan terms and that the

employer changed and misrepresented plan terms to his detriment); Hill v. Blue Cross & Blue

Shield of Mich., 409 F.3d 710, 717–18 (6th Cir. 2005) (allowing both § 502(a)(1) and § 502(a)(3)

claim where the plaintiffs alleged two separate injuries, one relating to individual denial-of-

benefits and the other to plan-wide claims-handling procedures).

       The district court awarded the total amount of relief sought under § 502(a)(1), and thus

did not directly address whether—in the event Brown III only partially recovers the amount of

coverage which was paid for (as we now conclude)—he would be entitled to equitable relief

under § 502(a)(3). Regardless of the amount of recovery received from a § 502(a)(1) claim, a

claimant cannot recover under both § 502(a)(1) and § 502(a)(3) for the same injury. See

Rochow, 780 F.3d at 372-74. Thus, Brown may have another remedy if he has asserted an injury

separate and distinct from the denial of benefits—such as an injury from United’s acceptance and

retention of premiums. If the district court finds a separate injury, an equitable remedy such as

surcharge, reformation of the contract, or estoppel might be appropriate and could result in an

award of $31,666.67—the difference between the $181,666.67 in coverage for which Brown II



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Brown v. United of Omaha

paid and the $150,000 in benefits to which Brown III is entitled under § 502(a)(1). See generally

CIGNA Corp. v. Amara, 563 U.S. 421, 440–42 (2011).

       Indeed, Brown III cites two of our sister circuits that have explained the broad

availability of equitable remedies where a plan fiduciary accepts premiums and then denies paid-

for benefits pursuant to the terms of the plan—as United did here. The Fourth Circuit has

explained, for example, that without equitable remedies being available under § 502(a)(3),

       fiduciaries would have every incentive to wrongfully accept premiums, even if
       they had no idea as to whether coverage existed—or even if they affirmatively
       knew that it did not. The biggest risk fiduciaries would face would be the return
       of their ill-gotten gains, and even this risk would only materialize in the (likely
       small) subset of circumstances where plan participants actually needed the
       benefits for which they had paid. Meanwhile, fiduciaries would enjoy essentially
       risk-free windfall profits from employees who paid premiums on non-existent
       benefits but who never filed a claim for those benefits.

McCravy v. Metro. Life Ins. Co., 690 F.3d 176, 183 (4th Cir. 2012); see also Silva, 762 F.3d at

718–20 (reversing dismissal of § 502(a)(3) claim that was based on the plan administrator

breaching its fiduciary duty to provide the plaintiff with summary plan description describing

evidence required as a prerequisite to insurability, which ultimately resulted in his denial of

benefits and a corresponding § 502(a)(1) claim).

       We accordingly reverse the district court’s summary judgment to United on Brown III’s

§ 502(a)(3) claim and remand for the district court to determine whether other equitable relief is

appropriate.

       C.      Prejudgment Interest.

       United argues that the district court erred in awarding prejudgment interest because it had

previously dismissed all of Brown III’s equitable claims.       “[P]rejudgment interest may be

awarded in the discretion of the district court. Awards of prejudgment interest are compensatory,

not punitive, and a finding of wrongdoing by the defendant is not a prerequisite to such an

                                              -14-
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Brown v. United of Omaha

award.” Rochow, 780 F.3d at 376 (citations omitted). Accordingly, an award of prejudgment

interest may be appropriate under § 502(a)(1) without reliance on § 502(a)(3) for equitable relief.

See id. We affirm the district court’s award of prejudgment interest.

       D.      Attorneys’ Fees.

       ERISA § 502(g)(1) grants a court discretion to “allow a reasonable attorney’s fee and

costs of action to either party.” 29 U.S.C. § 1132(g)(1). Factors a court must consider include,

       (1) the degree of the opposing party’s culpability or bad faith; (2) the opposing
       party’s ability to satisfy an award of attorney’s fees; (3) the deterrent effect of an
       award on other persons under similar circumstances; (4) whether the party
       requesting fees sought to confer a common benefit on all participants and
       beneficiaries of an ERISA plan or resolve significant legal questions regarding
       ERISA; and (5) the relative merits of the parties’ positions.

Sec’y of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir. 1985) (citations omitted). “No

single factor is determinative.” Wells v. U.S. Steel, 76 F.3d 731, 736 (6th Cir. 1996).

       On appeal, United challenges the propriety of awarding attorneys’ fees but not the

reduced amount awarded by the district court. The district court found that the first three factors

weigh in favor of awarding attorneys’ fees to Brown III, the fourth against it, and the last in favor

of neither party. With regard to the first factor, the district court noted United’s argument that

denial of benefits itself does not necessarily amount to “bad faith,” but the district court found

that it did so here because United withheld benefits for over two years “despite affirming Brown

II’s coverage on its website and collecting premiums from Brown II’s paychecks for ten

months.” United does not deny, under the second factor, its ability to pay an award of attorneys’

fees. Turning to the third factor, the deterrent effect, the district court found that, although

United may be right that the case involves “somewhat ‘unique’ circumstances” in a “micro

sense,” “employers routinely switch insurance providers, and the new provider’s task of

reviewing and approving employees’ prior coverage cannot be that uncommon.”                     “[A]n

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Brown v. United of Omaha

imposition of attorneys’ fees may encourage insurance providers to review their policies,

communicate better with employers, proactively request necessary documentation from its

insureds, and ensure the information it provides to its insureds is current and correct.”

       We conclude that the district court did not abuse its discretion in finding that the first

three factors weighed in favor of awarding attorneys’ fees and thus affirm its award.

                                     IV.     CONCLUSION

       We AFFIRM the district court’s grant of summary judgment to Brown III on the merits

of his § 502(a)(1) claim as well as its awards of prejudgment interest and attorneys’ fees.

We REVERSE the district court’s grant of summary judgment to United on Brown III’s

§ 502(a)(3) claim and REMAND with instructions to determine the amount of Brown III’s

award under 502(a)(1) and to determine whether other equitable relief is appropriate.




                                                -16-
No. 15-4293
Brown v. United of Omaha

       COOK, Circuit Judge, dissenting. I find I am unable to join the majority opinion as it

hinges a substantial award on the supposition that this decedent applied for $150,000 worth of

life insurance, though there exists no record evidence of his application. Premium payments

deducted by his employer leads the majority to surmise from there that the decedent surely

applied. But that path of analysis misses the crucial issues raised by United concerning the

gateway importance of its plan’s contractual provisions regulating enrollment, eligibility and

insurability. Appropriate focus on the plan documents’ contractual limitations would have

required the majority to accord “extreme deference,” McClain v. Eaton Corp. Disability Plan,

740 F.3d 1059, 1067 (6th Cir. 2014), to United’s reasonable reading of its plan’s terms. And

though the majority makes much of United being in the classic conflict situation—both

construing the meaning of its plan terms while also deciding its duty to pay—courts view this

situation as not affecting the deference due. Conkright v. Frommert, 559 U.S. 506, 512 (2010)

(citing Metro. Life Ins. v. Glenn, 554 U.S. 105, 115–116 (2008)); Peruzzi v. Summa Med. Plan,

137 F.3d 431, 433 (6th Cir. 1998) (citing Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d

689, 694 (6th Cir. 1989)).


       What is more, United thoroughly reviewed Brown’s unique circumstances before it

explained its rationale for why Brown never qualified as an insured of United under the plan’s

terms. Though Brown requested that Hartford issue a $30,000 policy to him, the fact of his

employer changing carriers from Hartford to United before his requested coverage took effect

disqualified him from “grandfathering” into automatic insurability as did his already-insured

coworkers.


       United’s plan-based explanation of its reasonable reading of the plan’s terms—within the

broad discretion the plan itself grants—should have foreclosed labeling United’s denial as
                                             -17-
No. 15-4293
Brown v. United of Omaha

“arbitrary and capricious.” And without that label, no basis existed for awarding prejudgment

interest or attorney fees.


         I would reverse the judgment of the district court, and remand for the limited purpose of

entering judgment for Brown for in the amount of premium payments withheld, approximately

$1000.




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