                              In the

    United States Court of Appeals
                For the Seventh Circuit
No. 11-1112

JAMES E. KILLIAN,
                                               Plaintiff-Appellant,

                                v.


CONCERT HEALTH PLAN, ET AL.,
                                            Defendants-Appellees.

         Appeal from the United States District Court for the
             Northern District of Illinois, Eastern Division.
No. 1:07-cv-04755 — Gary S. Feinerman and Marvin E. Aspen, Judges.


               ARGUED SEPTEMBER 29, 2011
                 DECIDED APRIL 19, 2012
           REARGUED EN BANC SEPTEMBER 27, 2012
                DECIDED NOVEMBER 7, 2013


   Before WOOD, Chief Judge, and POSNER, F LAUM,
EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, WILLIAMS,
SYKES, TINDER, and HAMILTON, Circuit Judges.

    RIPPLE, Circuit Judge. In February 2006, Susan Killian
learned that she had lung cancer, which had spread to her
brain. After physicians at Delnor Community Hospital
2                                                              No. 11-1112

determined that they could not operate, she sought a second
opinion from a physician at Rush University Medical Center
(“Rush”) and soon afterward was admitted for emergency
brain surgery. Although the surgery successfully removed the
most serious tumor, her cancer treatment was ultimately
unsuccessful, and she died a few months later.
    At the time of her diagnosis, Mrs. Killian was an employee
of Royal Management Corporation (“Royal Management”) and
participated in its group health insurance, which was provided
by Concert Health Plan Insurance Company (“Concert”).
Concert paid for part of Mrs. Killian’s cancer treatment, but
denied coverage, or paid only a small percentage, of services
received at Rush. Mr. Killian, the administrator of her estate,
brought this action against Concert, Concert Health Plan,1
Royal Management and Royal Management Corporation
Health Insurance Plan (the “Royal Plan”) seeking payment of
benefits against the Royal Plan and Concert, relief for breach of
fiduciary duty against Royal Management and Concert, and
statutory penalties against Royal Management.2
   The district court granted summary judgment for the
defendants on the denial of benefits and breach of fiduciary


1
  Concert Health Plan was dismissed as a party in earlier proceedings. See
R.232. Mr. Killian does not appeal that decision.

2
    The district court’s jurisdiction was predicated on 29 U.S.C. § 1132(e).
    In September 2012, Mr. Killian moved to substitute himself, in his
individual capacity, as plaintiff, and we granted his motion. App. R.48. He
subsequently has requested substitution again, this time to return himself
as administrator of Mrs. Killian’s estate. We address this request infra.
No. 11-1112                                                                   3

duty claims and awarded statutory penalties against Royal
Management. A panel of this court affirmed the decision of the
district court on the first two claims,3 but remanded for the
district court to correct the calculation of statutory penalties.
Killian v. Concert Health Plan (Killian I), 680 F.3d 749, 764–65 (7th
Cir. 2012).4 After rehearing by the en banc court, we adopt the
panel’s reasoning and conclusion related to the denial of
benefits and statutory penalties issues. On the breach of
fiduciary duty claim, however, we reverse the judgment of the
district court and remand for further proceedings.


                                       I
                            BACKGROUND
    Concert began providing insurance to Royal Management’s
employees in July 2005. The agreement between Royal
Management and Concert provided that Royal Management
would be the plan administrator and that Concert would be the
“administrator for claims determinations” and the “ERISA
[Employee Retirement Income Security Act] claims review
fiduciary” with “full and exclusive discretionary authority to:
1) interpret Policy or Group Plan provisions; 2) make decisions




3
  On the denial of benefits claim, the panel directed the parties to submit a
stipulation as to whether the providers at Rush were within Mrs. Killian’s
network. Killian v. Concert Health Plan (Killian I), 680 F.3d 749, 764 (7th Cir.
2012).

4
    Our jurisdiction is predicated on 28 U.S.C. § 1291.
4                                                     No. 11-1112

regarding eligibility for coverage and benefits; and 3) resolve
factual questions relating to coverage and benefits.”5
    While employed with Royal Management, Mrs. Killian
enrolled in the Royal Plan and selected coverage under the
“SO35 Open Access” option. The Master Group Policy and
accompanying Certificate of Insurance applicable to her SO35
plan described the terms, exclusions, conditions and benefits
available under the Royal Plan. Participants were cautioned to
seek services from network providers whenever possible and
told that “[t]o confirm that Your … provider is a CURRENT
participant … You must call the number listed on the back of
Your medical identification card.”6 The Master Group Policy
did not specify which of several numbers on the back of the
card should be called, and a few pages later it instructed
participants to obtain provider participation information by
calling an unspecified “toll free telephone number on your
identification card.”7 Participants also were directed to “call the
number” on their identification cards to verify infertility
benefits, or appeal a decision denying benefits.8 They were
instructed to follow the procedures described in the




5
    R.259-3 at 77.

6
    Id. at 15 (emphasis added).

7
    Id. at 19 (emphasis added).

8
    Id. at 42, 49, 50.
No. 11-1112                                                  5

“Utilization Management section” when receiving emergency
care.9
    The front of Mrs. Killian’s insurance card listed toll-free
numbers under four different headings. The second and most
prominently listed number was for “Customer Service,” which
was the same toll-free number for “Utilization review.” The
back of her card listed toll-free numbers under three different
headings, but used the same toll-free number for
“UTILIZATION REVIEW” and medical claims.10 Both sides of
this card are appended to this opinion.
   In late February 2006, Mrs. Killian sought treatment from
her primary care physician, Dr. Bradshaw, for a severe cold
and persistent headaches. A CT scan revealed the presence of
three brain tumors, and she was diagnosed with lung cancer,
which had metastasized to her brain. Mrs. Killian then went to
Delnor Community Hospital; she stayed for five days, but her
physicians concluded that they could not operate on the
tumors. Seeking a second opinion, the Killians scheduled an
appointment with Dr. Philip Bonomi, a physician at Rush who
had treated Mrs. Killian’s daughter before she died of cancer
in 2001. The Killians met with Dr. Bonomi and Dr. Louis
Barnes, a neurosurgeon, on April 7, 2006. Dr. Barnes reviewed
Mrs. Killian’s medical records, including the CT scan, and
determined that Mrs. Killian would be dead in five days unless
the largest tumor was removed immediately.



9
     Id. at 21.

10
     R.82-7 at 2–3.
6                                                            No. 11-1112

    The Killians did not contact Concert before meeting with
Dr. Bonomi because their plan to see Dr. Bonomi for a second
opinion did not depend on whether he was in Mrs. Killian’s
network. However, when they learned that Mrs. Killian had
only a few days to live unless the largest tumor was removed
and that physicians at Rush could perform the necessary
surgery, Mr. Killian called Concert about the developing
situation. He first called the “provider participation” number
listed on the front of Mrs. Killian’s insurance card. Mr. Killian
informed the Concert representative that he and Mrs. Killian
were at St. Luke’s Hospital11 for a second opinion, that the
physicians had determined that the tumor had to be removed
and that the physicians wanted Mrs. Killian to be admitted for
brain surgery. The representative searched her database and
could not find any information on “St. Luke’s,” but told
Mr. Killian to “go ahead with whatever had to be done.”12 She
also told him to call back later.13
   Mr. Killian called back later the same day, April 7, but this
time he called the number listed under the prominent
“Customer Service” heading on the front of Mrs. Killian’s
insurance card, which is the same number under the heading


11
    Rush University Medical Center adopted its current name in 2003. See
History, Rush University Medical Center Careers,
http://www.jobsatrush.com/history.htm (last visited Mar. 18, 2013). Before
that, Rush’s name incorporated the name of a predecessor entity, St. Luke’s.
Id.

12
     R.87 at 2.

13
     R.253 at 72.
No. 11-1112                                                             7

“Utilization review” on the front and back of the card and is
also listed as the number for medical claims. The
representative who took the second call seemed to be aware of
Mr. Killian’s earlier call and confusion about the name of the
hospital because when he mentioned Rush she said, perhaps
in jest, “Oh, you mean St. Luke’s.”14 He could hear her laugh
and tell a colleague, “It’s the guy from St. Luke’s.”15 When Mr.
Killian told the representative, “I’m trying to get confirmation
that we are going to be—my wife is going to be admitted to
Rush,” the representative said, “Okay.”16 She did not tell Mr.
Killian whether services at Rush were in or out of network or
whether there would be any limits to coverage.17
   Mrs. Killian underwent surgery at Rush two days later,
April 9, and was released on April 12, 2006. The record is silent
as to whether the Killians would have gone to a different
hospital or sought emergency admission at Rush18 had Concert
representatives told Mr. Killian that Rush was not in
Mrs. Killian’s network. After the surgery, she received some
outpatient services from Dr. Bonomi, and, in June 2006, she


14
     Id. at 73.

15
     R.87 at 2.

16
     R.253 at 73.

17
   The record does not contain call logs or other objective proof of which
numbers Mr. Killian called; however, Concert never has disputed these
facts.

18
   Services received on an emergency basis are processed at the in-network
level. See R.251 at 91.
8                                                   No. 11-1112

was admitted to Rush on an emergency basis for nine days to
be treated for pneumonia. Mrs. Killian attempted
chemotherapy but could not tolerate it, and she died in August
2006.
    During the months between Mrs. Killian’s surgery and
death, Mr. Killian received notices from Concert stating that
Concert would not cover services at Rush because the hospital
was not in Mrs. Killian’s network. In response to a letter from
Mr. Killian disputing the denial and requesting immediate
review, Concert reiterated that the claims were out of network
and that the Killians were responsible for the maximum
allowable fee. When Mr. Killian appealed, Concert agreed to
consider Mrs. Killian’s treatment for pneumonia as an
emergency and to process the claim for that treatment at the
in-network level. The remaining claims total approximately
$80,000.
   Mr. Killian filed this action in his capacity as administrator
of Mrs. Killian’s estate, and discovery ensued. The proceedings
before the district court included multiple motions to dismiss
and for summary judgment, and Mr. Killian amended his
complaint twice. Finally, the district court granted summary
judgment in favor of the defendants on the denial of benefits
and breach of fiduciary duty claims and granted statutory
penalties against Royal Management for failure to provide
Mrs. Killian with a summary plan description.
   On the denial of benefits claim, Mr. Killian argued that
Concert’s decision to deny benefits should not be sustained
because Concert did not comply with ERISA’s notification
requirements and because there was no evidence supporting
No. 11-1112                                                                9

Concert’s determination that Rush and Dr. Bonomi were not in
Mrs. Killian’s network. Section 1133(1) of Title 29 requires that
when a benefits claim is denied, the plan must give notice to
the beneficiary by “setting forth the specific reasons for such
denial, written in a manner calculated to be understood by the
participant.” Failure to comply substantially with § 1133 may
be grounds for reversing an administrator’s decision. See Love
v. Nat’l City Corp. Welfare Benefits Plan, 574 F.3d 392, 396 (7th
Cir. 2009). The district court determined that the notifications
sent by Concert did not comply with all of the technical
requirements set forth in 29 C.F.R. § 2560.503-1(j).19 However,
the court held that, because Concert’s letters substantially
complied with ERISA’s notification requirements, the
deficiencies did not warrant a finding that Concert’s decision


19
    In particular, the district court determined that Concert’s notification
letters
        failed to identify, by name, any “specific rule, guideline,
        protocol, or other similar criterion” used in reaching the
        decision. 29 C.F.R. § 2560.503-1(j)(5). The letters neglect to
        inform Killian that a copy of any relevant document, rule
        or other information will be provided to him at no cost,
        upon request. Id. The letters also say nothing about
        [Concert’s] internal appeals procedures, available dispute
        resolution options, or Killian’s right to sue under 29 U.S.C.
        § 1132(a). (Id.) Indeed, as Killian has emphasized
        throughout these proceedings, these notifications letters
        are quite sloppy. For example, they refer to Susan’s
        network as the PHCS (Open Access) Network, even
        though that is not the network mentioned in the COI.
Killian v. Concert Health Plan Ins. Co., No. 07-cv-04755, 2010 WL 2681107, at
*8 (N.D. Ill. July 6, 2010).
10                                                            No. 11-1112

was arbitrary and capricious. In addition, it held that there was
no need to remand to Concert because Mr. Killian did not
allege that the providers in question were within Mrs. Killian’s
network.20
    On the breach of fiduciary duty claim, Mr. Killian argued
that Concert and Royal Management failed to provide
Mrs. Killian with an adequate summary plan description. The
district court granted summary judgment for the defendants
because Mr. Killian had failed to show bad faith, purposeful
concealment or detrimental reliance.21 Mr. Killian moved for
reconsideration arguing that the district court had overlooked
our decision in Kenseth v. Dean Health Plan, Inc., 610 F.3d 452
(7th Cir. 2010), and had failed to address the two telephone
calls that he made to Concert on the day of the appointment
with Dr. Bonomi. Mr. Killian argued that Concert breached its
fiduciary duty by failing to inform him that Rush was out of
network and that coverage of any services received at Rush
would be limited. The district court dismissed this argument
on the grounds that Concert did not give Mr. Killian any
information about whether Rush was in network and because
the Killians had not relied on any statements made by Concert


20
   Id. at *9–10. The district court did not interpret Mr. Killian’s briefs as
arguing that Concert erred in determining that Rush and Dr. Bonomi were
out of network. Mr. Killian did make this argument. See R.86 at 12; R.263 at
8–9; R.290 at 8–9. The panel resolved this potential problem by requiring the
parties to submit a stipulation as to whether Rush, Dr. Bonomi and Dr.
Barnes were out of network, Killian I, 680 F.3d at 764, and we agree with
that disposition, see infra p. 26.

21
     Killian, 2010 WL 2681107, at *11.
No. 11-1112                                                                11

or Royal Management; it additionally noted that Mr. Killian
should have raised this argument in his opposition to
summary judgment.22
    A new district judge took over the case after summary
judgment on the denial of benefits and breach of fiduciary duty
claims. That judge addressed the separate claim for statutory
penalties for failure to provide plan documents and ordered
Royal Management to pay Mr. Killian $5,880.23
   After a final judgment was entered in the district court,
Mr. Killian timely appealed. A panel of this court affirmed
summary judgement for the Royal Plan and Concert on the
denial of benefits claim, but required the parties to submit a


22
   Killian v. Concert Health Plan Ins. Co., No. 07-cv-04755, 2010 WL 3000205,
at *2 (N.D. Ill. July 28, 2010). On appeal, Royal Management and Concert
did not argue that Mr. Killian waived this argument, thus waiving any
waiver. Killian I, 680 F.3d at 757; Westefer v. Snyder, 422 F.3d 570, 584 n.20
(7th Cir. 2005). Some of our dissenting colleagues, in contradistinction to
their position in the panel opinion, Killian I, 680 F.3d at 757, now maintain
that Mr. Killian waived his fiduciary duty argument by not raising it before
the district court. As the panel noted, “Concert did not argue that James had
waived the argument.” Id. Accordingly, any waiver was in turn waived by
the defendants. Westefer, 422 F.3d at 584 n.20. Nor can we accept the
proposition that Mr. Killian’s brief in this court was so abbreviated on the
subject as to have failed to alert them to this contention.

23
   Killian v. Concert Health Plan, No. 07-cv-04755, 2010 WL 5316041, at *2–3
(N.D. Ill. Dec. 17, 2010). Section 1024(b)(4) of Title 29 requires an
administrator, upon written request, to furnish a beneficiary with certain
plan documents. A beneficiary may seek statutory penalties against an
administrator who fails to provide the requested documents within thirty
days. 29 U.S.C. § 1132(c)(1).
12                                                    No. 11-1112

stipulation as to whether Rush, Dr. Bonomi and Dr. Barnes
were in Mrs. Killian’s network. The panel also affirmed
summary judgment for Royal Management and Concert on the
fiduciary duty claim. On the statutory damages claim, the
panel reversed and remanded because the district court used
the wrong dates in calculating the penalty and failed to
address one of Mr. Killian’s arguments.


                                II
                         DISCUSSION
    As noted earlier, we affirm the panel’s decision on the
denial of benefits and statutory penalties claims; we therefore
limit our discussion here to the one claim upon which we chart
a course different from that set out in the panel opinion: the
breach of fiduciary duties. Mr. Killian submits that Royal
Management and Concert breached their fiduciary duties in
two ways: first, by failing to provide Mrs. Killian with a
summary plan description and, second, by failing to inform
him that Mrs. Killian’s providers were out of network during
telephone conversations on April 7, 2006.
   A beneficiary is entitled to relief for a breach of fiduciary
duty if he proves “(1) that the defendant is a plan fiduciary; (2)
that the defendant breached its fiduciary duty; and (3) that the
breach resulted in harm to the plaintiff.” Kenseth, 610 F.3d at
464. It is not disputed here that Royal Management and
Concert are both fiduciaries under ERISA. Accordingly, with
respect to each of Mr. Killian’s theories on this claim, the issues
before us are only those of breach and harm.
No. 11-1112                                                           13

    On the first theory, related to the failure to provide a
summary plan description, the panel determined that Royal
Management and Concert breached their fiduciary duty. It
nevertheless affirmed summary judgment in favor of the
defendants because Mr. Killian could not show that the lack of
a summary plan description caused his harm. We agree with
this result because Mr. Killian knew that he could determine a
provider’s network status by calling a number on Mrs. Killian’s
insurance card, and we adopt the panel’s decision on this
matter.
    A review of Mr. Killian’s second theory of breach of
fiduciary duty is more difficult to resolve, and it is with respect
to this specific theory that we depart from the conclusions of
the panel decision.
    We pause at this point to set forth, for the convenience of
the reader, the path of our discussion. First, we examine
whether there is sufficient evidence of a controversy between
the parties to exercise jurisdiction over this claim. We conclude
that, although the full nature and extent of the harm is a merits
question, it is clear that, as this case comes to us today, there is
a live dispute between the parties about the merits of the claim
that justifies the exercise of our jurisdiction.24
   Having resolved this threshold issue, we shall then turn to
the merits. On this point, we agree with Mr. Killian that,
because the plan documents provided to Mrs. Killian were


24
   Our reasoning with respect to the justiciability of the disputed claim
applies as well to the other claims decided by the panel that are not
controverted in this en banc proceeding.
14                                                   No. 11-1112

incomplete in themselves, we must evaluate in some depth
whether that deficiency was cured in the telephone calls
Mr. Killian made to Concert on April 7, 2006. For the reasons
set forth in more detail below, we conclude that the summary
judgment record does not permit us to resolve this issue of
breach in favor of the defendants. Assuming that the question
of breach is resolved in favor of Mr. Killian the summary
judgment record similarly raises a genuine issue of triable fact
on the question of harm.
    We now turn to a plenary discussion of the issues we have
just outlined.


                               A.
    In September 2012, following the panel decision in this case,
Mr. Killian notified the court that Mrs. Killian’s estate had been
closed in August 2011. At the time, the only asset held by the
estate was its claim against the defendants, which was
distributed to Mr. Killian. Mr. Killian moved to substitute
himself as plaintiff in his individual capacity, rather than as
administrator of Mrs. Killian’s estate. We granted his motion.
We were concerned, however, about whether this change
affected our jurisdiction under the case or controversy
requirement of Article III of the Constitution of the United
States. This concern obligated us to consider the matter further.
See North Carolina v. Rice, 404 U.S. 244, 245–46 (1971) (per
curiam). Accordingly, following reargument en banc, we
ordered additional briefing to assist us in determining
whether, in light of the closing of the estate, “Mr. Killian
retains any interest in obtaining relief and whether the relief
No. 11-1112                                                     15

sought by Mr. Killian will make a difference to his legal
interests.” The parties responded. In his submission, Mr.
Killian notified the court that he had reopened Mrs. Killian’s
estate and again sought to pursue the claim on behalf of the
estate. Having reviewed the submissions, we now conclude
that there is a live controversy between the parties such that
our jurisdiction over the matter is not in question.
    Under Article III, the federal courts “may only adjudicate
actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317
(1988). When a case becomes moot, this constitutional
requirement is lacking. United States v. Segal, 432 F.3d 767, 773
(7th Cir. 2005) (noting that a case is moot if the controversy
between the parties has been resolved). The Supreme Court
recently has reiterated, simply and directly, the governing
principle in any mootness inquiry:
        There is thus no case or controversy, and a suit
     becomes moot, when the issues presented are no
     longer “live” or the parties lack a legally cognizable
     interest in the outcome. But a case becomes moot
     only when it is impossible for a court to grant any
     effectual relief whatever to the prevailing party.
Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (emphasis added)
(citations omitted) (internal quotation marks omitted). That is,
although “federal courts are without power to decide
questions that cannot affect the rights of litigants in the case
before them,” Rice, 404 U.S. at 246, “[a]s long as the parties
have a concrete interest, however small, in the outcome of the
litigation, the case is not moot,” Knox v. Serv. Emps. Int’l Union,
Local 1000, 132 S. Ct. 2277, 2287 (2012) (internal quotation
16                                                     No. 11-1112

marks omitted). Consequently, “[t]he burden of demonstrating
mootness is a heavy one,” Los Angeles Cnty. v. Davis, 440 U.S.
625, 631 (1979) (internal quotation marks omitted), borne by
the party seeking to have the case declared moot, see, e.g.,
Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 569–70
(1984).
    Notably, the Court also has counseled that we must be
careful not to “‘confuse[] mootness with whether [the plaintiff]
has established a right to recover …, a question which it is
inappropriate to treat at this stage of the litigation.’” Chafin, 133
S. Ct. at 1024 (second and third alterations in original) (quoting
Powell v. McCormack, 395 U.S. 486, 500 (1969)). In the present
case, to succeed on the merits of the fiduciary duty claim (the
claim that was in the possession of Mrs. Killian’s estate before
it was closed), Mr. Killian must present evidence from which
a factfinder can conclude that the estate suffered a harm from
a breach on the part of the defendants. But that is a burden that
he must carry on the merits. At this stage, by contrast, as we
consider our basic subject matter jurisdiction, Mr. Killian must
assert such a cognizable injury and demonstrate that it is
possible for the court, were it to agree with Mr. Killian’s
arguments on liability, “to ‘fashion some form of meaningful
relief,’” Flynn v. Sandahl, 58 F.3d 283, 287 (7th Cir. 1995)
(emphasis in original) (quoting Church of Scientology v. United
States, 506 U.S. 9, 12 (1992)). As we noted in Dixon v. ATI Ladish
LLC, 667 F.3d 891, 894 (7th Cir. 2012), “a good defense to
liability is a reason why defendants prevail on the merits rather
than a reason why the litigation should be dismissed without
prejudice—which is the consequence of mootness.” See also
Chafin, 133 S. Ct. at 1025 (noting that uncertainty as to whether
No. 11-1112                                                      17

an order will be followed or enforced does not render a case
moot); Segal, 432 F.3d at 773 (noting that the advisability of a
particular remedy “is not relevant to the mootness inquiry”);
cf. Harzewski v. Guidant Corp., 489 F.3d 799, 804 (7th Cir. 2007)
(reversing a district court’s dismissal for lack of standing
because “the question whether an ERISA plaintiff is a
‘participant’ entitled to recover benefits under the Act should
be treated as a question of statutory interpretation
fundamental to the merits of the suit rather than as a question
of the plaintiff’s right to bring the suit”). In short, the mootness
inquiry turns on “whether the relief sought would, if granted,
make a difference to the legal interests of the parties (as distinct
from their psyches, which might remain deeply engaged with
the merits of the litigation).” Air Line Pilots Ass’n, Int’l v. UAL
Corp., 897 F.2d 1394, 1396 (7th Cir. 1990) (emphasis added).
    The closing and reopening of the estate is an odd
circumstance, but one that unnecessarily, in our view,
complicates the jurisdictional inquiry. Regardless of whether
the estate is opened or closed, there is no question that the
parties have a current, live dispute with both immediate and
potential future consequences. Mrs. Killian incurred significant
medical bills preceding her death. See generally R.77-4, 77-5
(medical bills and explanations of benefits). The record reflects
that she (or Mr. Killian after her death) paid several of those
bills. See, e.g., R.77-5 at 18 ($65.77 paid to “Rush University
Medical Center” for services dated 04/08/2006); id. at 19 ($11.87
paid to “Rush University Medical Center” for services dated
04/07/2006); id. at 40 ($10 paid to “Rush University Medical
Center” for services dated 04/07/2006). Those debts
incurred—and bills actually paid—would not necessarily have
18                                                   No. 11-1112

been the same had the defendants covered her care to the
extent required had the providers been in-network. Indeed, the
record suggests that co-pay, coinsurance, and annual
deductible amounts differ depending on whether a service is
obtained from an in-network or out-of-network provider. See
R.77-3 at 65–69 (setting forth the applicable costs under the
SO35 Open Access plan, the plan in which Mrs. Killian was
enrolled). The estate, therefore, already has suffered this
concrete and redressable injury, and this fact alone is sufficient
to secure our jurisdiction.
   Although these amounts in themselves are sufficient to
prevent us from declaring the case moot, it would be wrong to
suggest that the only consequence of resolving this dispute
would be to settle debts on these amounts already paid. Since
Mrs. Killian’s death, the dispute in this case always has been one
between Mr. Killian and the defendants over his wife’s
coverage and their family’s resulting liability on third-party
medical debts. Initially, he pursued this dispute through the
vehicle of a probate estate, with the entire corpus of the estate
being the claims against the defendants. Tied up in the same
dispute, however, are the debts that Mrs. Killian died owing,
which we understand could have been collected by her
medical creditors either through claims against her estate or
directly against Mr. Killian under the Illinois Family Expense
Act, 750 ILCS 65/15. For practical purposes, as far as Mr. Killian
was concerned, the vehicle the creditors pursued was of little
consequence. In the end, the responsibility for payment rested
with him, either as administrator of the estate or because of his
direct and personal liability. Unsurprisingly, the creditors
appear to have pursued the path of least resistance and billed
No. 11-1112                                                               19

Mr. Killian directly.25 Also unsurprisingly, the record does not
reflect that any of the medical providers have ever instituted
judicial proceedings to collect on the debts as opposed to
working with Mr. Killian toward payment, perhaps at the
conclusion of this litigation. Given these circumstances,
Mr. Killian’s initial decision to close the estate is
understandable. It was Mrs. Killian’s claim, but he inherited it,
and, in any event, the consequence of the resolution of the
dispute, whatever it may be, falls to him alone. The estate is
and has always been a construct to resolve this dispute. We
find it equally understandable that, once it appeared from the
court’s own request for supplemental filings that the closing of
the estate might matter for our purposes, Mr. Killian
accommodated that possibility by reopening the estate.
Whether, as a matter of state law, that vehicle is a viable or
preferable way of proceeding is of secondary importance to
our present inquiry. By no account is the present dispute
resolved, and by no account has there been any fundamental
shift in the relationship of the parties to the dispute.26


25
   Judge Manion’s dissent (hereinafter dissent) contends that this statement
is unsupported by the record, which includes copies of bills submitted to
Mrs. Killian. However, Mr. Killian stated in his affidavit that the providers
“continue to bill me,” R.87 at 2, and counsel informed us both at oral
argument and in response to our request for supplemental filings that Rush
providers have continued to be in contact with Mr. Killian through his
attorneys regarding the amounts still owed for Mrs. Killian’s care.
Regardless of the name atop the bills received, it is apparent that the
providers have sought reimbursement from the Killians directly.

26
     The dissent asserts that any harm that has been suffered or might be
                                                             (continued...)
20                                                            No. 11-1112

    The foregoing discussion reveals the direct financial
interests at stake in the amounts already paid, and the
sufficiently real possibility that the additional debts may come
Mr. Killian’s way. In light of the reopening of the estate, the
contention in Judge Manion’s dissent (hereinafter dissent) that
there is no possibility of recovery of the medical bills from the
estate, and therefore no apparent harm to the estate, is not
demonstrably correct. Whether that contention was correct
while the estate was closed is a somewhat complicated
question. In Illinois, the fact that an estate is closed may, but
does not necessarily, preclude creditors from bringing claims
against it. In Schloegl v. Nardi (In re Estate of Perrine), 234 N.E.2d
558, 561 (Ill. App. Ct. 1968), the Illinois Court of Appeals held
that an estate that had been duly administered and closed


26
   (...continued)
suffered by Mr. Killian from an unfavorable resolution of this dispute arises
not from his status relative to the estate, but by operation of Illinois law,
given his marriage to Mrs. Killian at the time she incurred medical bills. It
attempts to illustrate the point by imagining that the Killians had divorced
following the medical care in question, such that Mr. Killian might continue
to be liable (and continue to benefit from a favorable resolution of the
present dispute) despite not being the beneficiary of her estate. But the
premise of the dissent’s exercise underscores the central issue. The Killians
did not divorce, and Mr. Killian stands before the court in his proper
person, both husband and administrator/beneficiary, asking the court to
resolve the same issue he has always asked it to resolve, and for the same
reason: He has faced and continues to face uncertain liabilities relating to
Mrs. Killian’s care at Rush.
    Accordingly, we deem Mr. Killian’s most recent motion to substitute to
be instead a motion to add himself in his capacity as administrator of the
estate as a plaintiff to this action, and we grant the motion.
No. 11-1112                                                    21

could be reopened when a plaintiff brought a personal injury
claim against the decedent. Subsequent cases have
distinguished Schloegl, but have not rejected its conclusion that
a claim may be brought against an estate if the time for
bringing such claims has not expired. See McCue v. Colantoni,
400 N.E.2d 683, 687 (Ill. App. Ct. 1980) (rejecting a personal
injury claim against an estate because, unlike the claim in
Schloegl, the claim was brought after the limitations period for
personal injury claims had expired); Dichtl v. Foster McGaw
Hosp. (In re Estate of Garawany), 399 N.E.2d 1024, 1026–27 (Ill.
App. Ct. 1980) (rejecting a late claim brought by medical
providers because, unlike in Schloegl, the insurance policy
already had been paid to the estate); see also Rivera v. Taylor,
336 N.E.2d 481, 485 (Ill. 1975) (noting that the statute governing
the period for bringing claims against an administrator would
not bar a personal injury claim before the end of the limitations
period for that claim).
     Any claim against Mr. Killian or Mrs. Killian’s estate would
likely be brought to enforce the agreement between
Mrs. Killian and the Rush providers or against Mr. Killian for
payment under the Illinois Family Expense Act, 750 ILCS
65/15. The limitations period for actions on written contracts or
written evidence of indebtedness is ten years. 735 ILCS
5/13-206. A five-year limitations period applies to “actions on
unwritten contracts, expressed or implied,” 735 ILCS 5/13-205,
and claims for family expenses under the Family Expense Act,
id.; Juechter v. Grace, 371 N.E.2d 179, 181 (Ill. App. Ct. 1977).
These limitations periods may be tolled if the party to be
charged makes a partial payment, St. Francis Med. Ctr. v.
Vernon, 576 N.E.2d 1230, 1231 (Ill. App. Ct. 1991), or new
22                                                  No. 11-1112

written promise to pay, Chase v. Bramhall, 98 N.E.2d 529, 531
(Ill. App. Ct. 1951). The record suggests that Mrs. Killian
agreed to be responsible for the charges, see, e.g., R.77-5 at 36
(bill from Rush listing Mrs. Killian as “Guarantor”), and makes
clear that at least some payments were made. There is no
evidence as to whether the Killians, or Mr. Killian on behalf of
the estate, also agreed in writing to pay all or portions of the
remaining bills as counsel informs us he has done verbally
throughout the course of these proceedings.
   In any event, as we have noted, the estate has been
reopened and, in light of the proceedings in this case, claims
for payment that were being sent to Mr. Killian might be
pursued now against the estate. This reality is also certainly
sufficient to support our exercise of jurisdiction.
    The dissent makes much of its assessment that, as against
the estate or Mr. Killian personally, all relevant limitations
periods have run, and therefore Mr. Killian has no reasonably
foreseeable injury on the horizon. It ignores, however, that the
debt to the providers already incurred is not contested in this
action and persists as a matter of state law regardless of the
running of any limitations period. La Pine Scientific Co. v.
Lenckos, 420 N.E.2d 655, 658 (Ill. App. Ct. 1981) (noting that
statutes of limitation “bar the right to sue for recovery but do
not extinguish the debt which remains as before”); Cook v. Britt,
290 N.E.2d 908, 909 (Ill. App. Ct. 1972) (“[A] statute of
limitations is an act limiting the time within which legal action
shall be brought and affects the remedy only and not a
substantive right.”). In any event, we simply do not know the
scope of Mr. Killian’s legal liability on that debt, nor do we
know the extent of his exposure to the detrimental
No. 11-1112                                                              23

consequences of having significant unpaid bills. In short,
whether Mr. Killian or the estate would have valid legal
defenses, including applicable statutes of limitation, to any
separate legal action to enforce the debt is simply not a
dispositive inquiry for present purposes.
    One more point bears noting. The parties seem to have
focused their jurisdictional arguments on whether there is a
stated right to damages, and the above discussion therefore
concentrates on that approach. However, Mr. Killian’s prayer
for relief in the operative complaint and, indeed, the words of
the statute, do not restrict the relief available in this case to
monetary relief. Particularly relevant to the present case, the
possibility of meaningful declaratory relief supports an
exercise of jurisdiction.27
    On the issue of mootness, “[t]he question is whether the
facts alleged, under all the circumstances, show that there is a
substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.” Super Tire Eng’g Co. v.
McCorkle, 416 U.S. 115, 122 (1974) (internal quotation marks
omitted). The record before us makes clear that this
jurisdictional threshold is satisfied. Mr. Killian’s financial
affairs are burdened with real uncertainty as a result of his
wife’s last illness, and a district court could award declaratory



27
   Mr. Killian’s requested relief is broad enough to encompass a declaratory
judgment. See R.134 at 12–13 (requesting relief in the form of payment of
medical bills, attorney’s costs and fees and “such other legal or equitable
relief as the court deems appropriate”).
24                                                             No. 11-1112

relief that would alter significantly that burden.28 When the
possibility of declaratory relief is considered together with past
and potential future pecuniary losses to the estate that might
justify monetary relief, there is no question that the case before
us is a live one and one in which the court, by granting a form
of the requested relief, can alter substantially the relationship
of the parties.
    On remand, the district court must deal with the questions
of liability and, if it reaches the question, remedy. This latter
issue will require the district court to resolve many factual and
legal matters on which the present record now permits only
speculation. For the present moment, it is sufficient to say that
the record fails to establish definitively that the Killians
incurred no harm as a result of the alleged breach. Nor is it
clear that declaratory relief would be unavailable to
Mr. Killian.
   In light of the fact of losses already supported by the record
and persisting uncertainties concerning the future liability of
the estate and its beneficiary, we cannot say that “there is
nothing for us to remedy, even if we were disposed to do so.”
Spencer v. Kemna, 523 U.S. 1, 18 (1998). The case is not moot,
and we must proceed to the merits.


28
   The harm necessary to succeed with the claim, as we have noted, belongs
to the estate. In light of the particular factual circumstances of the case,
however, Mr. Killian’s personal liabilities on Mrs. Killian’s debts would not
be irrelevant to a court fashioning appropriate declaratory relief in its
discretion. In short, there is more at stake here than Mr. Killian’s “wish that
the Rush doctors receive additional compensation for their services and …
desire [for] vindication for the wrong he perceives.” Dissent at 73.
No. 11-1112                                                  25

                              B.
    In determining whether a fiduciary duty has been
breached, our inquiry is guided by the plain wording of the
statute and by established case law. As fiduciaries, Royal
Management and Concert, in fulfilling their duties to Mrs.
Killian and other plan participants, must
     discharge [their] duties … solely in the interest of
     the participants and beneficiaries and … 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.
29 U.S.C. § 1104(a)(1)(B). These duties are analogous to those
of loyalty and care that are imposed upon a trustee under the
common law. See Kenseth, 610 F.3d at 465–66.
   Our decision in Kenseth sets forth, with great precision, how
the command of the statute ought to be applied in a situation
such as the one before us. There, we recognized that
     “once an ERISA beneficiary has requested
     information from an ERISA fiduciary who is aware
     of the beneficiary’s status and situation, the
     fiduciary has an obligation to convey complete and
     accurate information material to the beneficiary’s
     circumstance, even if that requires conveying
     information about which the beneficiary did not
     specifically inquire.”
26                                                        No. 11-1112

Id. at 466 (emphasis in original) (alteration omitted) (quoting
Gregg v. Transp. Workers of America Int’l, 343 F.3d 833, 845–46
(6th Cir. 2003)). “Regardless of the precision of his questions,
once a beneficiary makes known his predicament, the fiduciary
‘is under a duty to communicate … all material facts in
connection with the transaction which the trustee knows or
should know.’” Id. at 467 (alteration in original) (quoting
Restatement (Second) of Trusts § 173, cmt. d (1959)).
   If “the plan documents are clear and the fiduciary has
exercised appropriate oversight over what its agents advise
plan participants and beneficiaries as to their rights under
those documents, the fiduciary will not be held liable simply
because a ministerial, non-fiduciary agent has given
incomplete or mistaken advice to an insured.” Id. at 472.
Nevertheless, if a fiduciary “suppl[ies] participants and
beneficiaries with plan documents that are silent or ambiguous
on a recurring topic, the fiduciary exposes itself to liability for
the mistakes that plan representatives might make in
answering questions on that subject.” Id.
   In the present case, we cannot say that the pertinent plan
documents were clear and complete as to which service
providers were in Mrs. Killian’s network. The Killians never
have received a summary plan description, which must
contain “the composition of the provider network,” 29 C.F.R.
§ 2520.102-3(j)(3),29 and the Master Group Policy does not



29
   The summary plan description for employee health plans must include,
inter alia,
                                                          (continued...)
No. 11-1112                                                               27

identify which providers are in network. Instead, beneficiaries
are instructed to either “call the number listed on the back of
[their] medical identification card[s]” or “call[] the toll free
telephone number on [their] identification card[s]” to
determine whether a provider is in network.30 The situation
before us is therefore much like the one that we confronted in
Kenseth, where the policy documents’ only advice for
determining “whether a particular course of treatment was
covered by the … plan was to call [the fiduciary]’s customer
service line.” 610 F.3d at 477. Here, the Master Group Policy
simply instructed participants to contact Concert before
undergoing treatment to determine whether the providers
would be in network. They were given no more direction.
Concert asserts that directing beneficiaries to call is the best
way to confirm network provider information because its list
of network providers frequently changes. We do not
necessarily disagree with Concert’s conclusion; we merely
point out that this approach made the plan documents


29
     (...continued)
            provisions governing the use of network providers, [and]
            the composition of the provider network, … . In the case of
            plans with provider networks, the listing of providers may
            be furnished as a separate document that accompanies the
            plan’s SPD, provided that the summary plan description
            contains a general description of the provider network and
            provided further that the SPD contains a statement that
            provider lists are furnished automatically, without charge,
            as a separate document.
29 C.F.R. § 2520.102-3(j)(3).

30
     R.259-3 at 15, 19.
28                                                  No. 11-1112

incomplete. Consequently, Concert “expose[d] itself to liability
for the mistakes that [its] representatives might make in
answering [Mr. Killian’s] questions on that subject.” Id. at 472.


                                      C.
   Because the instructions given in the provided plan
documents were deficient, we must examine the substance of
the telephone calls between Mr. Killian and Concert. In our
view, a reasonable trier of fact certainly could conclude that
Concert was aware (or, at the very least, that it should have
been aware) that Mr. Killian was attempting to determine
whether Rush and the physicians who were about to perform
surgery on Mrs. Killian were within Mrs. Killian’s network.


                      1. The First Telephone Call
    The front of Mrs. Killian’s insurance card provides
telephone numbers under four different headings. The first
number is for “determin[ing] Provider participation.”31 This
was a “dedicated line” for providing “[t]he most accurate, up to
date information” regarding provider participation.32 Because
this line was dedicated to informing beneficiaries whether
providers were in network, Concert knew (or, at the very least,
should have known) that beneficiaries would call this line to
determine a provider’s network status. As such, when a


31
     R.82-7 at 2.

32
     R.259-5 at 10 (emphasis in original).
No. 11-1112                                                         29

beneficiary calls this number, Concert “‘has an obligation to
convey complete and accurate information material to
[provider participation status], even if that requires conveying
information about which the beneficiary did not specifically inquire,’”
Kenseth, 610 F.3d at 466 (emphasis in original) (quoting Gregg,
343 F.3d at 845–46), “[r]egardless of the precision of his
questions,” id. at 467.
    Mr. Killian called this number on April 7, 2006. After
providing Mrs. Killian’s name and card number, he said, “we
are here for a second opinion and she is going—they want to
admit her because we already determined the tumor has to
come off.” R.253 at 72; see also id. at 125 (“I said she was being
admitted to the hospital and they were going to do the
surgery.”). Mr. Killian referred to Rush as “St. Luke’s,” the
name that he always had used for this hospital. The Concert
representative said that she was unable to find a listing under
that name and instructed Mr. Killian to “[g]ive [her] a call
back.”33 She also said that Mrs. Killian should “go ahead with
whatever had to be done.”34 Although the representative did
not state directly that Rush was in Mrs. Killian’s network, a
reasonable trier of fact could conclude that this representative
failed “to convey complete and accurate information material
to [Mrs. Killian]’s circumstance.” Kenseth, 610 F.3d at 466
(internal quotation marks omitted). Mr. Killian at one point
testified that he and the representative “never determined



33
     R.253 at 72.

34
     Id. at 124–25.
30                                                  No. 11-1112

anything,” during this telephone call.35 However, he also
testified that, at the end of the two calls, he believed that
Mrs. Killian’s surgery would be covered “[b]ecause nobody
ever said these [providers] are out-of-network.”36
    Taking these facts in the light most favorable to Mr. Killian
for purposes of summary judgment, a reasonable trier of fact
could conclude: (1) that Mr. Killian was concerned about
whether the providers were in network; (2) that Mr. Killian
called the number that Mrs. Killian’s insurance card said
should be used to determine provider participation to resolve
this question; (3) that the representative knew that Mr. Killian
was seeking this information; (4) that the representative told
Mr. Killian to “go ahead with whatever had to be done,” even
though she knew that she had not been able to establish the
provider’s network status; and (5) that Mr. Killian left that
telephone call believing that Mrs. Killian could “go ahead with
whatever had to be done” because he had followed the
instructions on Mrs. Killian’s insurance card, was told to do so
and received no warning that the “go ahead” was not to be
understood as an authorization. Mr. Killian’s testimony is
susceptible to the interpretation that, during the stress of the
moment, he believed that he could rely on the representative’s
instruction to “go ahead.” Mr. Killian “should not be penalized
because he failed to comprehend the technical difference
between ‘[go ahead]’ and ‘[the provider is in network].’ The
same ignorance that precipitates the need for answers often


35
     Id. at 72.

36
     Id. at 136.
No. 11-1112                                                    31

limits the ability to ask precisely the right questions.” Kenseth,
610 F.3d at 467. A finder of fact would be entitled to conclude
that, at the very least, the representative should have
instructed Mr. Killian that she was unable to locate an entry in
her system for “St. Luke’s” and that she could make no
representations at that time as to whether the provider was in
network.
    The fact that Mr. Killian made a second call does not
necessarily negate his claim of reliance on the instruction to
“go ahead.” Mr. Killian testified that, in making the second
telephone call, he was calling “for preadmission,” as he was
instructed to do by Mrs. Killian’s insurance card.37 The card
said that “[e]mergency admissions must be certified within 48
hours” and that this second number should be used to obtain
the necessary “UTILIZATION REVIEW.”38 Taking these facts
in the light most favorable to Mr. Killian, a reasonable trier of
fact could conclude that Mr. Killian made the second call to
obtain the required “certification,” or “UTILIZATION
REVIEW,” for his wife’s surgery. Having just learned that the
surgical procedure was necessary for his wife to live longer
than a few days,39 a reasonable trier of fact could conclude that
Mr. Killian believed this was an emergency procedure for
which he was not required to obtain precertification seven
days in advance.



37
     Id. at 73–74.

38
     R.82-7 at 3.

39
     R.253 at 127–28.
32                                                  No. 11-1112

                    2. The Second Telephone Call
    When Mr. Killian made the second telephone call, he dialed
the second, and most prominent, number on the front of
Mrs. Killian’s insurance card, which was for customer service,
as well as for utilization review. As noted earlier, this was the
same number listed on the back of the card for utilization
review and medical claims. There is evidence that Concert had
encouraged beneficiaries to use this number for determining
provider participation as well. Specifically, in the Master
Group Policy, Concert instructed beneficiaries that they “must
call the number listed on the back of [their] medical
identification card” in order “[t]o confirm that … [a] provider
is a CURRENT participant in [the beneficiary’s] provider
Network.”40 The back of Mrs. Killian’s insurance card provides
two different telephone numbers under three separate
headings: the customer service number from the front of the
card is provided twice; a vision benefits number is provided
once.41 A beneficiary who seeks to confirm that a hospital is in
network by “calling the number listed on the back” of his
insurance card must call either the number Mr. Killian called
or the number for the “Vision Service Plan,” which clearly was
inapplicable to the Killians’ situation. Therefore, Concert
arguably should have known that beneficiaries such as
Mr. Killian would be calling this line to determine whether
certain providers were in their network.



40
     R.259-3 at 15 (emphasis added).

41
     R.82-7 at 3.
No. 11-1112                                                    33

    Moreover, the second number that Mr. Killian called was
the correct, and apparently the only, number that he could call
to obtain the required certification review with respect to the
particular surgical procedure that his wife was about to
undergo. Given his earlier telephone conversation, a
reasonable trier of fact certainly could conclude that any
further information as to whether the providers were in
Mrs. Killian’s network would have been provided in the course
of this conversation regarding the authorization of the
particular procedure.
    Indeed, under these circumstances, Concert had an
affirmative obligation to inform Mr. Killian that the providers
Mrs. Killian was about to see were out of network. See Kenseth,
610 F.3d at 466 (“[T]he trustee is under a duty to communicate
to the beneficiary material facts affecting the interest of the
beneficiary which he knows the beneficiary does not know and
which the beneficiary needs to know for his protection in
dealing with a third person.” (internal quotation marks
omitted)). On this record, a rational trier of fact could conclude
that this second representative was aware that Mr. Killian’s
telephone calls were an effort to confirm two points: (1) that
the health care providers treating his wife were within the
Plan’s network; and (2) that the particular procedures
contemplated for her care were authorized by the Plan. In this
second call, Mr. Killian stated: “I’m trying to get confirmation
that we are going to be—my wife is going to be admitted to
Rush.”42 The representative laughed, said, “Oh, you mean St.
Luke’s,” and seemed to speak to a person sitting next to her.

42
     R.253 at 73.
34                                                 No. 11-1112

The second representative then informed Mr. Killian that the
hospital is known as “Rush Presbyterian.”43 At some point,
Mr. Killian said, “Susan is going to be admitted,” and the
representative said “[o]kay.”44 From her laughter and attempt
at humor, a reasonable finder of fact well might conclude that
this second representative knew something about Mr. Killian’s
prior call. It would be reasonable to infer that this
representative knew that Mr. Killian had attempted to
determine whether “St. Luke’s” was in Mrs. Killian’s network
during Mr. Killian’s prior call to the number for determining
provider participation.
    It is true that when Mr. Killian called Concert, provided
Mrs. Killian’s policy number, told Concert where they were
and said that Mrs. Killian needed immediate brain surgery, he
did not also ask the specific question, “Is Rush an in-network
provider?” However, neither the Master Group Policy nor our
holding in Kenseth requires beneficiaries to ask such a specific
question. The Master Group Policy simply told Mr. Killian to
call a number on the insurance card, which he did twice.
Under Kenseth, the fiduciary’s duty to provide complete and
accurate information, even if the beneficiary does not
specifically inquire, is triggered when the beneficiary makes
the ERISA fiduciary “aware of the beneficiary’s status and
situation.” 610 F.3d at 466 (internal quotation marks omitted).
A rational factfinder could conclude that Mr. Killian put
Concert on notice of his status and situation. The first Concert


43
     Id.

44
     Id.
No. 11-1112                                                                 35

representative’s attempt to locate “St. Luke’s” suggests that she
was aware of his need to determine Rush’s network status, and
the second representative’s comments suggest that she was
aware of the earlier call to the network provider number.45

45
   The dissent argues that it is impossible for Mr. Killian to ever have called
the provider participation line because, it asserts, the only way for the
second representative to have had knowledge of Mr. Killian’s prior call is
if Mr. Killian called the customer service number both times. There are a
few problems with this theory.
    First, this assumption, while plausible, is not a fact that we can assume
in Concert’s favor at summary judgment. Concert’s vice president of
operations testified that “the network” operates the 800 number for
determining provider participation, R.115-3 at 200, but he did not testify as
to whether Concert and “the network” share facilities or employees and any
presumptions must be made in Mr. Killian’s favor. Representations made
by counsel at oral argument that Concert and PHCS do not share employees
and that telephone calls to each line are directed to separate facilities may
be true, but on summary judgment counsel’s factual assertions at oral
argument do not substitute for record evidence.
    Second, if we could assume that Mr. Killian is mistaken about which
numbers he called and that he did call the same number twice, whether
both telephone calls were made to the customer service line or the provider
participation line is a fact that must be construed in the light most favorable
to Mr. Killian.
     Finally, even if we could assume that Mr. Killian called the customer
service line both times, a factfinder still could conclude that Concert was on
notice of his need for provider network information because, as noted
above, the Master Group Policy instructed beneficiaries “[t]o confirm that
Your … provider is a CURRENT participant …You must call the number
listed on the back of Your medical identification card.” R.259-3 at 15
(emphasis added). The customer service/utilization review number was the
only potentially applicable number on the back of Mrs. Killian’s card. After
                                                                 (continued...)
36                                                               No. 11-1112

    Nor does the summary judgment record establish that the
Killians suffered no harm. It is undisputed that the Killians
would have made an appointment with Dr. Bonomi for a
second opinion regardless of his network participation status,
but two days elapsed between the telephone calls and the
actual surgery. A rational finder of fact could conclude that the
Killians would have found another hospital or sought
emergency admission at Rush had Concert informed them that


45
   (...continued)
directing beneficiaries seeking provider information to call “the” number
on the back of the card, Concert cannot avoid its fiduciary duties by
suggesting that Mr. Killian should have called a number on the front of the
card.
     The dissent also argues that Mr. Killian never called to determine
provider network status and points to Mr. Killian’s deposition where he
testified that he told the representative that his wife was being admitted and
that he called because he was supposed to call for preadmission. Dissent at
27–31. The dissent argues that because, in his deposition, Mr. Killian said
“preadmission” rather than “provider network information,” he could not
have placed the fiduciary on notice of his need for provider network
information.
     This view suggests that, contrary to our holding in Kenseth v. Dean
Health Plan, Inc., 610 F.3d 452 (7th Cir. 2010), the beneficiary must use the
exact terms as defined by the fiduciary before the fiduciary is required to
provide information, but the issue is whether Mr. Killian’s interaction with
the representatives was sufficient to put them on notice of his need for
provider network information. Although Mr. Killian used the word
“preadmission” in his deposition when telling the attorneys the purpose of
his call, he did not testify that he told the representatives that he was calling
for preadmission. His interaction with the representatives included calling
the designated number, informing the representative of his location and
telling the representative of the needed surgery.
No. 11-1112                                                                37

Rush was out of network. Concert fails to point to any
evidence in support of its assertion that the decision to obtain
a second opinion regardless of network status necessarily
implies that the Killians would have stayed and had the
surgery performed at Rush even if Concert told them that Rush
was out of network.46
    ERISA does not require a fiduciary to set out on a quest to
uncover some kind of harm that might befall a beneficiary. But
this case requires no such expedition. It simply requires an
application of the rule, articulated in Kenseth, that an insurance
company cannot defeat a breach of fiduciary duty claim by
asserting that it was unaware that an insured was seeking
certain material plan information when the insured called two
different numbers that the insurance company itself
established to provide the sort of information in question. This
is particularly true when the representatives tell an insured to
“go ahead with whatever ha[s] to be done”47 while knowing (or
at least having reason to know) that the insured is confused
about this aspect of his plan and is about to undergo a costly
procedure that will not be fully covered. We already have held


46
    Although Mr. Killian bears the ultimate burden at trial, “[a] party
seeking summary judgment bears an initial burden of proving there is ‘no
material question of fact with respect to an essential element of the
non-moving party’s case.’” MMG Fin. Corp. v. Midwest Amusements Park,
LLC, 630 F.3d 651, 657 (7th Cir. 2011) (quoting Delta Consulting Grp., Inc. v.
R. Randle Constr., Inc., 554 F.3d 1133, 1137 (7th Cir. 2009)).
    Concert deposed Mr. Killian, but never asked whether Mrs. Killian was
well enough to travel to a different hospital.

47
     R.253 at 125.
38                                                            No. 11-1112

that summary judgment is inappropriate where the “plan
documents … failed to explain adequately” a particular
provision and the lack of clarity “was then exacerbated by [the
fiduciary’s agents] when [the beneficiary] inquired about her
coverage.” Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 591
(7th Cir. 2000). In Kenseth, we read Bowerman to establish that
“by supplying participants and beneficiaries with plan
documents that are silent or ambiguous on a recurring topic,
the fiduciary exposes itself to liability for the mistakes that plan
representatives might make in answering questions on that
subject.” 610 F.3d at 472 (citing Bowerman, 226 F.3d at 591).
Kenseth further indicated that the principle emerging from
Bowerman is “especially true when the fiduciary has not taken
appropriate steps to make sure that ministerial employees will
provide an insured with the complete and accurate
information that is missing from the plan documents
themselves.” Id. at 472 (emphasis added).48




48
   The dissent points to Kenseth for the proposition that “Concert cannot be
liable for a breach of fiduciary duty based on the actions of a non-fiduciary
like PHCS,” Dissent at 84 n.16, but the Kenseth passage quoted is noting that
a fiduciary “cannot be held liable on the basis of respondeat superior.”
Kenseth, 610 F.3d at 465 (emphasis added). In fact, we have held that a
fiduciary can be liable for inaccurate or misleading information provided
by a nonfiduciary. See id. at 469 (holding that a fiduciary could breach its
duty by inviting inquiries and not warning beneficiaries that they could not
rely on the advice given by customer service representatives); Bowerman v.
Wal-Mart Stores, Inc., 226 F.3d 574, 591 (7th Cir. 2000) (holding a fiduciary
liable when inadequacies in the plan documents were exacerbated by
incorrect and misleading information from its agents).
No. 11-1112                                                                 39

                                  Conclusion
    On the denial of benefits claim, we affirm the district
court’s grant of summary judgment, but remand with
directions for counsel for both sides to submit a joint
stipulation concerning whether Rush University Hospital, Dr.
Barnes and Dr. Bonomi were within Mrs. Killian’s provider
network. If counsel are not able to agree on a conclusive
stipulation, the district court should resolve this issue on
remand.49
    On the breach of fiduciary duty claim, we affirm in part and
reverse in part the judgment of the district court. We affirm the
district court’s grant of summary judgment in favor of Royal
Management and Concert with respect to their failure to
provide Mrs. Killian with a summary plan description.
Consonant with this opinion, we reverse the grant of summary
judgment on the breach of fiduciary duty claim with respect to
Mr. Killian’s telephone call inquiries and remand to permit the
trier of fact to determine: (1) whether the telephone calls put
Concert on adequate notice, thus giving rise to a duty to
disclose material information related to the Killians’ situation,
(2) whether Concert breached this duty and (3) whether the
breach harmed Mr. Killian.50

49
     This is the result reached by the panel. Killian I, 680 F.3d at 764.

50
   On remand, the district court also must address the type of remedy
available under ERISA. ERISA provides for equitable relief for breach of
fiduciary duty claims, see 29 U.S.C. § 1132(a)(3); the Supreme Court recently
has suggested that equitable relief can include monetary payments through
estoppel and “surcharges,” see CIGNA Corp. v. Amara, 131 S. Ct. 1866, 1880
                                                                (continued...)
40                                               No. 11-1112

   On the statutory damages issue, we remand the matter to
the district court to permit a recalculation of the award as
outlined in the panel’s opinion.
    We grant Mr. Killian’s motion to proceed as administrator
of his wife’s estate as well as in his individual capacity.
                                        IT IS SO ORDERED.




50
   (...continued)
(2011).
No. 11-1112   41
42                                                         No. 11‐1112 


    POSNER, Circuit Judge, concurring in the judgment. I agree 
with the outcome, and with much of the analysis in the ma‐
jority  opinion.  But  I  disagree  that  the  obligation  at  issue  in 
the  appeal  derives  from  a  fiduciary  duty.  This  is  really  a 
breach of contract case, and treating it as such not only is the 
correct approach but simplifies analysis wonderfully. 
     But  before  discussing  the  merits,  I  want  to  say  a  few 
words about mootness, the subject of a protracted debate be‐
tween  Judges  Ripple  and  Manion.  Both  quote  the  standard 
formula, repeatedly endlessly in cases, that a case is moot if 
a judgment on the merits in favor of the plaintiff would not 
give  the  plaintiff  money  or  anything  else  of  tangible  value. 
In  other  words,  if  something  happens  in  the  course  of  the 
case  that,  had  it  happened  before  the  case  was  brought, 
would have required dismissal for lack of standing, the case 
must  be  dismissed  as  moot;  the  plaintiff  has  lost  standing. 
But  that  isn’t  the  actual  doctrine.  See  generally  Matthew  I. 
Hall,  “The  Partially  Prudential  Doctrine  of  Mootness,”  77 
Geo. Wash. L. Rev. 562 (2009). A case is not moot, for example, 
if  the  defendant  voluntarily  discontinues  the  practice  that 
the plaintiff sought to enjoin, but maybe plans to resume it if 
the suit is dismissed as moot. United States v. W.T. Grant Co., 
345  U.S.  629,  632–33  (1953).  Or  if  the  plaintiff  can  never  get 
relief if mootness is a bar, as in a suit to establish a woman’s 
right  to  an  abortion  because  the  suit  can’t  be  completed  in 
the nine months between her becoming pregnant and giving 
birth. Roe v. Wade,  410  U.S. 113, 125  (1973). (For the general 
principle  that  excepts  from  the  doctrine  of  mootness  orders 
capable  of  repetition  but  evading  review,  see,  e.g.,  Southern 
Pacific Terminal Co. v. ICC, 219 U.S. 498, 514–16 (1911).) Nor 
does a class action suit become moot (after the class is certi‐
fied),  because  the  named  plaintiff  has  settled  with  the  de‐
No. 11‐1112                                                          43 


fendant and so no longer has anything to gain from a judg‐
ment.  Genesis  Healthcare  Corp.  v.  Symczyk,  133  S.  Ct.  1523, 
1529–30 (2013); County of Riverside v. McLaughlin, 500 U.S. 44, 
51–52 (1991). 
     The  reason  that  mootness  is  a  less  strict  doctrine  than 
standing  is  that  a  case  that  becomes  moot,  unlike  a  case  in 
which there never was standing, is a case that originally was 
properly before the court, and the court may have made, as 
it was entitled to make, substantive rulings in the case. “[B]y 
the time mootness is an issue, the case has been brought and 
litigated, often (as here) for years. To abandon the case at an 
advanced  stage  may  prove  more  wasteful  than  frugal.  This 
argument  from  sunk  costs  does  not  license  courts  to  retain 
jurisdiction  over  cases  in  which  one  or  both  of  the  parties 
plainly  lack  a  continuing  interest,  as  when  the  parties  have 
settled or a plaintiff pursuing a nonsurviving claim has died. 
…  But  the  argument  surely  highlights  an  important  differ‐
ence between the  two doctrines.” Friends  of the  Earth, Inc. v. 
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 191–
92 (2000) (footnote omitted). 
    When  want  of  standing  is  detected  at  the  outset  of  suit, 
there is no wasted court motion. But mootness by definition 
is detected later, and there can be a great deal of wasted mo‐
tion if mootness is equated to an absence of standing and in 
consequence  everything  the  court  has  done  to  date  in  the 
case  is  wiped  out.  The  present  case  was  filed  seven  years 
ago. The passage of time has witnessed changes that argua‐
bly  moot  the  issue  in  the  case.  I  think  one  could  argue  that 
when a case is fully adversary until the very end, the prece‐
dential value of a decision on the merits would justify carv‐
ing  still  another  exception  to  the  doctrine  of  mootness.  But 
44                                                         No. 11‐1112 


we  don’t  have  to  go  that  far  in  this  case.  Judge  Ripple  has 
presented grounds for regarding Mr. Killian as continuing to 
have  a  tangible  stake  in  a  favorable  judgment.  Those 
grounds are tenuous; but, when the issue is mootness, even 
a tenuous ground should suffice to avert dismissal. 
   So  on  to  the  merits.  The  administrator  of  an  employee 
welfare  benefits  plan  (the  type  of  plan  at  issue  in  this  case) 
has a fiduciary duty to the plan’s participants “to the extent” 
that “he has any discretionary authority or discretionary re‐
sponsibility  in  the  administration  of  [the]  plan.”  29  U.S.C. 
§ 1002(21)(A)(iii); see Pegram v. Herdrich, 530 U.S. 211, 223–26 
(2000);  Baker  v.  Kingsley,  387  F.3d  649,  660  (7th  Cir.  2004); 
Johnson  v.  Georgia‐Pacific  Corp.,  19  F.3d  1184,  1188  (7th  Cir. 
1994);  In  re  Citigroup ERISA  Litigation,  662  F.3d  128,  135  (2d 
Cir. 2011). (Other subsections of ERISA concerning fiduciary 
obligation, unrelated to this case, focus on financial issues in 
plan administration. See 29 U.S.C. §§ 1002(21)(A)(i), (ii).)  
     To  call  authority  “discretionary”  is  to  say  that  the  per‐
sons affected by its exercise, such as the plaintiff in this case, 
have  no  crisply  defined  right  to  limits  on  that  exercise.  The 
plan  administrator has been  given discretion by the  plan  to 
decide for example how much to spend on training his em‐
ployees,  including  telephone  receptionists  who  answer  par‐
ticipants’  questions  about  coverage.  Such  decisions,  being 
entrusted to the administrator, are not to be picked apart by 
appeal to the wisdom of hindsight. The participants’ protec‐
tion from the plan administrator’s abusing his discretion lies 
in  the  rule  that  a  fiduciary  must  discharge  his  responsibili‐
ties  with  the same  prudence—trading off  costs  and benefits 
with the same care—that he would employ were he a recipi‐
No. 11‐1112                                                        45 


ent rather than a provider of such services: he must treat the 
participants as well as he would treat himself. 
    There  is  no  evidence  of  abuse  of  discretion  in  this  case 
and thus of a violation of a fiduciary obligation. There was a 
breach of contract, but not every such breach is a violation of 
a  fiduciary  obligation.  Liability  for  breach  of  contract  is 
strict.  The  plan  administrator  may  discharge  his  fiduciary 
obligations  scrupulously,  yet  if  an  employee,  acting  within 
the scope of his employment, makes a mistake that gives rise 
to a breach of contract, the mistake and hence the breach will 
be  imputed  to  the  plan  administrator  by  the  doctrine  of  re‐
spondeat  superior—but  without  any  implication  that  the 
administrator committed a breach of trust. 
    No matter. ERISA authorizes a plan participant to bring a 
suit  “to  recover  benefits  due  to  him  under  the  terms  of  his 
plan,” 29 U.S.C. § 1132(a)(1)(B)—benefits in other words that 
the plan promised. Such a suit treats the plan as a contract. 
Herzberger  v.  Standard  Ins.  Co.,  205  F.3d  327,  330  (7th  Cir. 
2000); Harlick v. Blue Shield of California, 686 F.3d 699, 708–09 
(9th Cir. 2012). The plaintiff in this case is complaining about 
a  breach  of  the  plan  by  the  claims  administrator,  an  insur‐
ance  company  hired  by  (and  for  purposes  of  appeal  indis‐
tinguishable from) the plan administrator. The plaintiff seeks 
“a contract remedy under the terms of the plan.” Ponsetti v. 
GE Pension Plan, 614 F.3d 684, 695 (7th Cir. 2010). As that is 
all he seeks, there is no need, or occasion, to decide whether 
the plan administrator violated a fiduciary duty. 
    ERISA  preempts  breach  of  contract  suits  based  on  state 
law. 29 U.S.C. § 1144. But all this means is that in an ERISA 
suit for breach of contract “the relevant principles of contract 
interpretation are not those of any particular state’s contract 
46                                                        No. 11‐1112 


law, but rather are a body of federal common law tailored to 
the  policies  of  ERISA.”  Mathews  v.  Sears  Pension  Plan,  144 
F.3d 461, 465 (7th Cir. 1998); see also Pilot Life Ins. Co. v. De‐
deaux,  481  U.S.  41,  55–56  (1987).  Not  all  American  common 
law is an emanation from state courts. When Justice Holmes, 
protesting against the rule of Swift v. Tyson allowing federal 
courts  to  apply  “general”  common  law  in  diversity  cases, 
said that “the common law is not a brooding omnipresence 
in the sky, but the articulate voice of some sovereign or quasi 
sovereign  that  can  be  identified,”  Southern  Pacific  Co.  v.  Jen‐
sen,  244  U.S.  205,  222  (1917)  (dissenting  opinion),  he  didn’t 
mean  that  states  were  the  only  sovereigns  that  create  com‐
mon law. Just as federal common law governs suits charging 
breach of federal government contracts, so ERISA’s preemp‐
tion  provision  makes  federal  common  law  govern  suits  for 
breach of the terms of ERISA plans. 
    It’s  true that in  suits to enforce federal  government  con‐
tracts  the  Supreme  Court  has  told  us  “to  adopt  the  ready‐
made  body  of  state  law  as  the  federal  rule  of  decision  until 
Congress  strikes  a  different  accommodation.”  Empire 
Healthchoice  Assurance,  Inc.  v.  McVeigh,  547  U.S.  677,  691–92 
(2006),  quoting  United  States  v.  Kimbell  Foods,  Inc.,  440  U.S. 
715,  740  (1979).  But  that  approach  isn’t  possible  in  this  case 
because  ERISA  preempts  state  law  in  order  “to  ensure  that 
plans and plan sponsors would be subject to a uniform body 
of benefits law” and thus “minimize the administrative and 
financial  burden  of  complying  with  conflicting  directives 
among  States  or  between  States  and  the  Federal  Govern‐
ment.”  Ingersoll‐Rand  Co.  v.  McClendon,  498  U.S.  133,  142 
(1990). 
No. 11‐1112                                                         47 


    To treat the present case as charging breach of a fiduciary 
obligation creates uncertainty as to remedy—uncertainty we 
don’t need. ERISA provides only equitable relief to a partici‐
pant  complaining  of  a  violation  of  such  an  obligation,  29 
U.S.C.  § 1132(a)(3)(B);  Mertens  v.  Hewitt  Associates,  508  U.S. 
248, 255–58, 266 (1993); Kenseth v. Dean Health Plan, Inc., 610 
F.3d 452, 482 (7th Cir. 2010), whereas all that the plaintiff in 
this  case  seeks  is  simple  damages.  Monetary  relief  is  some‐
times permissible in equitable cases, but why enter that briar 
patch? 
   Casting this as a case of fiduciary obligation also creates 
uncertainty  concerning  the  scope  of  a  plan  administrator’s 
duty. How expansive is the fiduciary obligation to inform a 
plan  participant  of  the  differences  in  the  plan’s  reimburse‐
ment  for  charges  by  alternative  providers  of  medical  treat‐
ment?  What  body  of  fiduciary  law  supplies  an  answer  to 
that question? 
    And  notice  that  the  fiduciary  approach  arbitrarily  and 
paradoxically  bestows  greater  rights  on  participants  in  and 
beneficiaries  of  ERISA  plans  than  on  beneficiaries  of  func‐
tionally  identical  insurance  plans  not  governed  by  ERISA, 
and  even  Medicare  Advantage  plans.  What  sense  does  that 
make? 
    Analysis  of  the  case  as  a  suit  for  breach  of  contract  is 
straightforward.  The  plan  creates  a  “provider  network”  of 
hospitals and other health care providers. A plan participant 
who  obtains  treatment  within  the  network  is  entitled  to  re‐
imbursement of a much larger fraction of his expenses than 
if he’s treated by an out‐of‐network provider. The difference 
in this case, in which expensive surgery was performed in an 
out‐of‐network  hospital  (Rush),  was  $80,000.  Implicitly  the 
48                                                        No. 11‐1112 


plan administrator was required, when asked, to furnish the 
participant  in  a  timely  manner  with  an  adequate  means  of 
determining  whether  the  participant’s  preferred  provider 
was  in  or  out  of  the  network.  To  provide  this  information 
would  not  have  involved  a  difficult  determination  of  the 
scope of coverage, a determination that would have required 
the  receptionist  who  took  the  plaintiff’s  call  to  interpret  the 
plan. She just had to look up the hospital’s name in a data‐
base or, if unable to do so, tell the plaintiff where to find the 
requested information online or in his plan documents. She 
failed to do this, and the result was that all he had to guide 
him  was  a  confusing  insurance  card  with  multiple  phone 
numbers unclearly labeled as to purpose. 
     The  provider’s  contractual  duty  is  to  furnish  requested 
information in a “timely” manner, lest delay, caused for ex‐
ample by refusing to provide the information orally, prevent 
the participant from receiving the information in time to act 
on it. The plaintiff claims that when he told the receptionist 
that his wife was receiving treatment at “St. Luke’s” (Rush‐
Presbyterian‐St. Luke’s Medical Center) the receptionist told 
him  to  “go  ahead  with  whatever  had  to  be  done.”  She  did 
not  tell  him  that  the  hospital  was  not  in  the  provider  net‐
work.  Nor  did  she  tell  him  where  he  could  find  the  list  of 
Chicago hospitals that are in the network—indeed, the plain‐
tiff alleges that the list had not been made publicly available. 
    A  contract  consists  not  only  of  explicit  terms  but  of  im‐
plicit ones needed to make the explicit terms effective. Stolt‐
Nielsen  S.A.  v.  AnimalFeeds  ’International  Corp.,  130  S.  Ct. 
1758, 1775 (2010); Bidlack v. Wheelabrator Corp., 993 F.2d 603, 
607  (7th  Cir.  1993)  (en  banc),  Wood  v.  Duff‐Gordon,  118  N.E. 
214 (N.Y. 1917) (Cardozo, J.); Restatement (Second) of Contracts 
No. 11‐1112                                                         49 


§ 204 (1981). This is true of ERISA plans in their capacity as 
contracts. Singer v. Black & Decker Corp., 964 F.2d 1449, 1452–
53 (4th. Cir. 1992). Such implicit terms are read into written 
as  well  as  oral  contracts  and  thus  coexist  with  the  require‐
ment that ERISA plans be “established and maintained pur‐
suant  to  a  written  instrument,”  29  U.S.C.  § 1102(a)(1),  a  re‐
quirement that we have called “a long way toward a statute 
of frauds.” Frahm v. Equitable Life Assurance Society, 137 F.3d 
955, 958 (7th Cir. 1998). 
    One of the implicit terms in every contract is the duty of 
good‐faith  performance.  Denil  v.  DeBoer,  Inc.,  650  F.3d  635, 
639 (7th Cir. 2011); Market Street Associates Ltd. Partnership v. 
Frey, 941 F.2d 588, 593–96 (7th Cir. 1991). It requires the per‐
forming  party,  in  this  case  the  plan  administrator,  to  avoid 
“tak[ing] deliberate advantage of an oversight by your con‐
tract partner concerning his rights under the contract.” Id. at 
594.  A  closely  related  principle  is  that  “you  cannot  prevent 
the  other  party  to  the  contract  from  fulfilling  a  condition 
precedent to your own performance, and then  use  that  fail‐
ure  to  justify  your  nonperformance.”  Ethyl  Corp.  v.  United 
Steelworkers of America, AFL‐CIO‐CLC, 768 F.2d 180, 185 (7th 
Cir.  1985).  The  plan  in  this  case  saved  itself  a  considerable 
sum of money because the plaintiff obtained surgery for his 
wife  at  a  hospital  that  wasn’t  in  the  provider  network.  The 
contractual  duties  that  I  have  just  described  required  the 
plan administrator to inform the plaintiff of his options if he 
inquired  about  them—and  he  claims  he  did.  If  so  informed 
the plaintiff might have decided to move his wife to a hospi‐
tal in the network. There was time, and it appears that there 
was at least one hospital in range of Rush competent to per‐
form  the  surgery.  Whether  the  plaintiff  and  his  wife  would 
have  exercised  that  option  is  critical  to  whether  he  can  re‐
50                                                       No. 11‐1112 


cover  the  additional  $80,000  that  he  paid  Rush  for  the  sur‐
gery. But it is an issue that awaits resolution on remand. 
    The  Supreme  Court’s  decision  in  Massachusetts  Mutual 
Life Ins. Co. v. Russell, 473 U.S. 134 (1985), does not rule con‐
ventional  principles  of  contract  interpretation  out  of  ERISA 
and  so  deny  the  duty  of  good  faith  performance  of  obliga‐
tions  created  by  an  ERISA  plan.  It  holds  only  that  extracon‐
tractual  damages  can’t  be  obtained  in  a  suit  for  breach  of  a 
plan’s  obligation,  whether  fiduciary  or  contractual,  explicit 
or implicit, to process claims in good faith. 
    Concurring  in  the  Singer  case  cited  above,  Judge  Wil‐
kinson expressed concern that allowing plan participants or 
beneficiaries to enforce implicit terms in ERISA plans would 
increase cost and uncertainty. 964 F.2d at 1453. I doubt that. 
The  common  law  of  contracts,  a  law  that  enforces  implicit 
contractual terms, is a stable, largely uniform, and generally 
quite  satisfactory  body  of  law.  One  hears  plenty  of  com‐
plaints about the costs and uncertainty entailed by the litiga‐
tion of other claims, but few about the costs and uncertainty 
entailed in enforcing claims of breach of contract. Judge Wil‐
kinson cites no evidence in support of his fear that allowing 
general  common  law principles  to  inform litigation  over al‐
leged breaches of the terms of ERISA plans will cause “actu‐
arial chaos.” Id. at 1454. Following his advice would just cre‐
ate pressure for an expansive interpretation of fiduciary ob‐
ligation, as in the majority opinion in this case—and how is 
uncertainty reduced by substituting the equitable doctrine of 
fiduciary obligation for the common law of contracts? 
No. 11‐1112                                                          51 

    EASTERBROOK,  Circuit  Judge,  concurring  in  part  and  dis‐
senting  in  part.  I  agree  with  the  court’s unanimous  disposi‐
tion of the statutory‐damages issue and with Part II.A, which 
concludes that the controversy is live. I also join Part II.C of 
Judge  Manion’s  opinion,  which  demonstrates  that  the  suit 
fails on the merits. I offer two additional thoughts. 
    First,  I  agree  with  Judge  Posner  that  it  would  be  best  to 
apply  contract  principles.  In  Firestone  Tire  &  Rubber  Co.  v. 
Bruch,  489  U.S.  101  (1989),  the  Supreme  Court  started  with 
fiduciary principles drawn from trust law because the claims 
asserted  there  involved  discretionary  decisions  by  plans’  fi‐
duciaries.  ERISA  says  that  “a  person  is  a  fiduciary  with  re‐
spect to a plan to the extent (i) he exercises any discretionary 
authority or discretionary control respecting management of 
such  plan  …  or  (iii)  he  has  any  discretionary  authority  or 
discretionary  responsibility  in  the  administration  of  such 
plan.” 29 U.S.C. §1002(21)(A). The claims in this litigation do 
not  entail  discretion  in  management  or  implementation;  to 
the  contrary,  plaintiff  asserts  and  the  majority  holds  that 
Concert Health lacked discretion. Applying the principles of 
contract law, perhaps informed by any specific doctrines de‐
veloped  in  the  law  of  health  insurance  contracts,  would 
promote  certainty  and  comparability  between  health  care 
provided as a fringe benefit of employment and other medi‐
cal coverage. 
    Second, an approach such as the majority’s can make par‐
ticipants  worse  off.  They  value  the  opportunity  to  obtain 
prompt  oral  advice  about  eligibility  for  benefits.  Some  par‐
ticipants  will  lack  ready  (or  any)  access  to  online  databases 
of providers or description of a plan’s benefits. Conditions of 
coverage  may  be  hard  to  understand.  See,  e.g.,  Kenseth  v. 
52                                                      No. 11‐1112 

Dean Health Plan, Inc., 722 F.3d 869 (7th Cir. 2013). And print‐
ed lists of in‐network providers may be bulky and go out of 
date. Thus oral advice can be a boon to participants. 
    Yet  oral  exchanges  often  are  imprecise.  The  representa‐
tive  must  answer  off  the  cuff,  often  with  inadequate  infor‐
mation.  The  participant  may  misunderstand,  misremember, 
or  dissemble  about  the  content  of  the  conversation  when, 
years later, a question arises about who said what. Litigation 
will be one‐sided. James Killian asserts that particular things 
were said; the representatives at the other end of the phone, 
even if they could be identified, would not recall the conver‐
sations. 
     Problems of memory and veracity could be addressed by 
recording everything and keeping the recordings for howev‐
er  long  the  statute  of  limitations  lasts,  though  it  might  be 
hard to find a particular call in many thousand hours of oral 
exchanges.  But  the  fact  that  immediate  answers  to  vague 
questions  will  be  imprecise,  and  occasionally  inaccurate, 
cannot be fixed by better record‐keeping. Under the majori‐
ty’s approach, any inaccuracy—and any failure to be helpful 
by answering questions the participants should have asked, 
but  didn’t—imposes  liability  on  the  plan,  even  if  the  ques‐
tion  is  so  vague  that  the  telephone  representative  does  not 
get its gist. 
   That  legal  rule  will  induce  some,  perhaps  many,  health‐
care  plans  to  take  steps  for  self‐protection.  One  possibility 
would be to stop giving oral advice. Since that advice can be 
valuable,  and  usually  is  accurate,  participants  would  be 
worse off. A second possibility would be to give oral advice, 
pay  up  when  errors  occur,  and  cover  that  cost  by  reducing 
the  benefits  provided  by  the  plan.  Participants  might  not 
No. 11‐1112                                                      53 

welcome that approach either. Still another possibility would 
be to alert participants that no oral advice could be relied on. 
A plan might say something like: “Our web site has a data‐
base of in‐network providers and details about which medi‐
cal procedures  are  covered.  If the online resource is insuffi‐
cient,  or  if  you  need  advance  permission  for  a  procedure, 
you may send us a letter or email; we will answer in writing, 
and you can rely on that response. We also offer telephonic 
advice and information but do not warrant its accuracy, and 
you use it at your own risk.” Would this approach help par‐
ticipants? I doubt it. Perhaps my colleagues would hold that 
ERISA  disallows  telling  participants  that  they  can’t  rely  on 
oral advice. That would induce plans to close their telephon‐
ic hotlines, a step sure to injure participants. Today’s decision 
will  push  employers  and  their  plans’  administrators  in  that 
regrettable direction. 
54                                                    No. 11-1112

    MANION, Circuit Judge, with whom SYKES, Circuit Judge,
joins, concurring in part, dissenting in part.
    Susan and James Killian were understandably distraught
when they learned in early April 2006 that Susan had lung
cancer, that it had spread to her brain, and that the brain
tumors were inoperable. It is also only natural that their
thoughts were focused on Susan’s health and finding a doctor
able to operate and remove the tumors, and not on the terms
of Susan’s health insurance plan. And so the Killians did not
inquire in advance whether her doctors or Rush University
Medical Center were within her health care network; because
it turned out that they were not, Susan incurred liability of
approximately $80,000 in medical expenses. James believed
Concert Health Plan Insurance Company (“Concert”) and
Royal Management, her employer and the plan administrator,
should be liable for those expenses because when he called to
inform Concert that Susan was being admitted for brain
surgery, the Concert representatives did not inform him that
the medical providers were out-of-network. Accordingly, on
August 22, 2007, on behalf of Susan’s estate, James filed suit
against Concert and Royal Management under ERISA for
denial of benefits, breach of fiduciary duty, and for statutory
damages. In addition to statutory damages, James sought
equitable relief in the form of payment for (or a direction to
pay), the outstanding medical bills owed the Rush providers.
   Over the course of the last six years, the parties, the district
court, and this court have expended significant resources
exploring the scope of ERISA’s fiduciary obligations and the
network status of the Rush providers. During that time, the
administration of Susan’s estate was completed and the estate
No. 11-1112                                                    55

was closed and James inherited Susan’s rights in this litigation.
The court was belatedly notified of this development and the
parties did not consider its import, leaving the court to direct
the parties to file supplemental briefing on the question of
whether the closing of Susan’s estate mooted this appeal. In
response, James reopened the estate but “solely for the purpose
of probating the ERISA clam and prosecuting the claim in the
District Court and 7th Circuit Court of Appeals.” R.58-2. The
issue, though, was never whether James could continue to
prosecute Susan’s ERISA claims which he inherited in his
individual capacity. He clearly could—if the relief sought
would make a difference to the legal interests of the parties. But
it won’t, at least for the denial of benefits and breach of
fiduciary duty claims. Both those claims sought as relief
payment of the outstanding medical bills. However, neither
Susan nor her estate ever paid those bills. Now that her estate
is closed for all purposes except prosecution of this case and
the statutory time period for recovering from a decedent (and
James for that matter) has passed, there is no longer any
liability to the Rush providers. Thus, while an order to pay
those bills would benefit third-party non-litigants who no
longer have a claim against the estate, i.e., the Rush providers,
such relief would not make a difference to the legal interests of
Susan’s estate, since there is no longer any liability for those
medical bills. What we have then is an advisory opinion on the
merits of the denial of benefits and breach of fiduciary duty
claims because the asserted harm no longer exists. If those
claims were not moot, I would agree that remand would be
appropriate on the denial of benefits claim, but that, for several
reasons, Susan’s breach of fiduciary duty claim cannot succeed.
56                                                    No. 11-1112

The statutory damages claim, though, remains a live contro-
versy because Susan’s entitlement to those damages now
resides with James, her beneficiary, and remand on that claim
is appropriate. Accordingly, I CONCUR IN PART AND
DISSENT IN PART.
                       I. BACKGROUND
    The en banc court recounts the sad facts in this case. In brief,
in February 2006, Susan Killian saw her primary care physician
because she was suffering from persistent headaches and a
severe cold. Her doctor ordered a CT scan, which revealed that
Susan had lung cancer that had spread to her brain. She was
admitted to Delnor Community Hospital for five days, but was
told that her brain tumors were inoperable and she was
discharged. Susan and her husband James decided that she
should seek a second opinion and they turned to Dr. Bonomi.
Dr. Bonomi had previously treated Susan’s daughter as well as
Susan’s fiancé, both of whom unfortunately died of cancer. R.
115-3 at 28, 31.
   After her release from Delnor, Susan scheduled an appoint-
ment with Dr. Bonomi for April 7, 2006. Dr. Bonomi directed
Susan to first meet with a neurosurgeon, Dr. Louis Barnes.
Prior to Susan’s appointments with Dr. Bonomi and Dr.
Barnes, James made no attempt to determine whether the
doctors were in the PHCS Open Access Network, which was
the network applicable to Susan’s health insurance plan with
Concert. James testified that he did not know whether Susan
No. 11-1112                                                           57

had made any calls or had reviewed the website for a list of
network providers1. R.115-3 at 30–31, 121.
    On April 7, 2006, Susan met with Dr. Barnes and he told her
that one of her tumors needed to be removed immediately or
she would be dead within five days. Based on Dr. Barnes’
prognosis, Susan decided to have the tumor removed. While
she was being admitted to Rush Hospital, James telephoned
Concert. Although the en banc court states that James “first
called the ‘provider participation’ number listed on the front of
Mrs. Killian’s insurance card,” Opinion at 6, as discussed in
more detail below, the record does not support that conclusion;
rather, the record shows that James placed two telephone calls
to Concert’s customer service/utilization review number. See
infra at 79–87. And when asked why he called Concert on April
7, James said twice in his deposition that he called Concert to
tell them Susan “was going to be admitted to a hospital.”
R.115-3 at 71–73.
     Doctors removed the brain tumor on April 10 and Susan
was released from the hospital on April 12, 2006. R.77-5 at
55–56. She received additional outpatient services from Dr.
Bonomi and attempted chemotherapy, but could not tolerate
it. In June 2006, Susan was admitted to Rush for nine days to
be treated for pneumonia. She died two months later.



1
  James was not insured under Susan’s health insurance policy and was not
involved in Susan’s decision to enroll in the Concert health care option
“SO35 Open Access,” which used the PHCS Open Access network. R.115-3
at 15–16, 19–20. James also did not know what information Susan had
received upon enrolling in the Concert plan. R.115-3 at 19; 138–139.
58                                                          No. 11-1112

     After Susan’s surgery and prior to her death, Susan began
receiving bills from the various Rush providers for outstanding
balances related to the brain surgery2. In total, the Rush
providers continued to bill Susan for approximately $80,000 in
medical expenses. Contrary to the court’s statement that
Concert stated it would not cover services at Rush, Opinion at
8, Concert did not deny Susan coverage for the various services
related to her brain surgery at Rush; rather, it paid those claims
pursuant to the policy’s out-of-network formula. R.115-3 at
263, 270; R.41-18 at 1. In total, Concert paid approximately
$17,500 in medical expenses related to Susan’s surgery at Rush.
R. 41-11 at 1, 2, 7. Moreover, while the providers continued to
bill Susan for approximately $80,000-plus in medical expenses,
the great disparity between the amount paid by Concert
($17,500) and the remaining amount owed by Susan (approxi-
mately $80,000) resulted not from an astonishingly low
percentage covered by the insurance company for out-of-
network expenses,3 but from the fact that the out-of-network
providers charged a much higher rate for their services than
Concert believed was reasonable, that is, the “maximum
allowable fee.” Specifically, Concert paid out-of-network
providers for services rendered based on the Medicare
Resource-Based Relative Value Scale. R.77-3 at 22; R.41-18 at 1.
And unlike in-network providers, out-of-network providers


2
   Specifically, Susan continued to receive bills from Rush University,
University Anesthesiologists, and Chicago Institute of Neurosurgery. R.218-
6 at 1.

3
  The Concert policy covered 50% of out-of-network expenses for hospital-
izations, subject to the maximum allowable fee. R.259-5 at 3.
No. 11-1112                                                           59

had not agreed to accept the insurance company’s payment as
full payment for services. Rather, out-of-network providers
could continue to bill a patient at whatever rate they deemed
appropriate, which, in Susan’s case, resulted in her owing the
Rush providers approximately $80,000.4
    Susan could have avoided these high out-of-pocket
expenses had she opted for better coverage through a different
Concert health care plan offered by her employer, namely one
which used the PHCS-PPO network. The Rush providers were
in-network for the PHCS-PPO network. R.115-3 at 250. But the
Concert plan which used the PHCS-PPO network of physicians
was more expensive and would have cost Susan approximately
50% more in premiums. R.251 at 51; R.259-3 at 80. Obviously,
when she selected the less expensive policy Susan did not
know she would soon be diagnosed with late-stage cancer and
that her preferred doctors would be out-of-network.
    At the time Susan enrolled in the Concert Health Care Plan
and selected coverage under the SO35 Open Access option,
which used the PHCS Open Access network of providers, she
was informed of these reimbursement provisions. Specifically,
Susan received an enrollment packet which included, among
other things, a Certificate of Insurance, a reminder page, a
“frequently asked questions” page, a document summarizing
her employment benefits, and her health insurance card (a


4
  After learning of the Killians’ situation, Concert did write the Rush
providers on Susan’s behalf and requested that they not bill Susan for
charges above the reimbursement rate. R.77-7 at 11. The Rush providers,
though, were not contractually obligated to do so and apparently demurred
because they continued to bill Susan for the higher fee amounts.
60                                                    No. 11-1112

copy of which is appended to the en banc court’s opinion).
R.259-2–5. The Certificate of Insurance detailed Susan’s
coverage and, relevant to this appeal, explained in straightfor-
ward terms the difference in coverage for in-network and out-
of-network providers and that insureds were responsible for
any charges above the maximum allowable fee, while stressing
that “the choice of provider is Yours.” R.77-3 at 5, 11–12. It also
explained that insureds could determine the network status of
providers by calling Concert or by checking on-line. R.77-3 at
5. Additionally, it stressed the requirement that insureds notify
Concert of any hospital admissions for “pre-certification” or
“utilization” review, or incur a $1,000 penalty. R.77-3 at 11.
And finally, it explained that pre-certification review was a
determination of whether a medical service was medically
necessary and that “[p]recertification of medical necessity is
subject to the limitations, exclusions, and provisions of this
certificate … .” R.77-3 at 23.
    While the Certificate of Insurance was a comprehensive
document, spanning fifty-one pages, the enrollment packet
included much more simplified highlights for insureds,
including a two-page “Employee Benefit Summary” of the
Concert Health Plan. R.259-5 at 2, 3. This summary specified
that the SO35 Open Access network was the “PHCS Open
Access” network. Id. It then summarized the reimbursement
rates for various services, both in-network and out-of-network,
and informed insureds that: “Non-Network services are
subject to Maximum Allowable Fee limitations. The Patient
will be responsible for any charges over these limits.” Id.
Another one-page, large-font sheet captioned “REMINDER,
PRE-CERTIFICATION IS NEEDED FOR THE FOLLOWING
No. 11-1112                                                   61

SERVICES,” provided a list of eleven services requiring pre-
certification, including “hospital admission.” R.259-5 at 9. And
a separate one-page handout provided a list of important
telephone numbers and website addresses, including both the
PHCS webpage and telephone number and the Concert
webpage and telephone number. R.259-5 at 7. Finally, a one-
page “Frequently Asked Questions” sheet explained that
       Concert Health Plan has partnered with PHCS
       for your health plan. PHCS is the nation’s lead-
       ing health care network. In order to locate a
       provider in a specific region of the county, (sic),
       simply go to the PHCS web site
       (WWW.PHCS.COM). You will also have an
       option to print out a “personalized directory”
       based on the areas for which you are looking for
       a provider.
R.259-5 at 8. Insureds were also directed “to confirm with the
network that the provider is still participating at the location
you have chosen” by calling PHCS at 800-242-6679. Id.
    James, as administrator of Susan’s estate, eventually sued
Concert, and later, in an amended complaint, added Susan’s
former employer, Royal Management. The amended complaint
alleged three ERISA claims: (1) denial of benefits, (2) breach of
fiduciary duty, and (3) statutory damages. The district court
granted summary judgment to the defendants on all three
claims and James, as administrator of Susan’s estate, appealed.
    During the pendency of the appeal, Susan’s estate was
closed and James inherited Susan’s lawsuit. James was then
substituted in as the plaintiff. R.48-2. This court directed the
62                                                    No. 11-1112

parties to file supplemental briefing on the question of whether
the closing of Susan’s estate mooted this litigation. In response,
James reopened Susan’s estate “solely for the purpose of
probating the ERISA claim and prosecuting the claim in the
District Court and 7th Circuit Court of Appeals.” R.58-2. He
then requested that the court substitute the estate back into the
case. R.64-1 at 2.
    The en banc court, sua sponte, deemed James’s motion to
substitute himself in his capacity as administrator of the estate
as a motion to add himself in that capacity, in order to allow
James to continue to pursue this litigation both in his individ-
ual capacity and as administrator of Susan’s estate. Opinion 20
at n.26; Opinion at 40. But whether James is now prosecuting
this case in his individual capacity—having inherited the
lawsuit—or in his capacity as administrator of Susan’s estate,
is irrelevant because the underlying claims remain Susan’s
breach of fiduciary duty, denial of benefits and statutory
damages claims.
    The court concludes that those ERISA claims are not moot,
stating “there is no question that the parties have a current, live
dispute with both immediate and potential future conse-
quences.” Opinion at 17. The court suggests four theories for
why there remains a live controversy. First, the court reasons
that the estate may have already suffered a concrete and
redressable injury by having overpaid some medical bills.
Opinion at 17–18. But as discussed below, James never argued
such a harm. Opinion at 69–70. Second, the court asserts that
since Susan’s estate has been reopened, the Rush claims “might
be pursued now against the estate.” Opinion at 22. This
reasoning is wrong for two reasons: (1) Susan’s estate has not
No. 11-1112                                                    63

been reopened for purposes of allowing creditors to file
additional claims against the estate, but solely for the purpose
of prosecuting this ERISA action; and (2) as James stated in his
Supplemental Reply Memorandum: “All claims against the
estate are barred by the Illinois Probate Act’s two-year limita-
tion period, 755 ILCS 5/18-12(b). … Thus, Rush University and
Susan Killian’s other providers cannot collect anything from
her estate.” R.64-1 at 1. The court’s third rationale for why this
case is not moot, namely that James remains directly and
personally liable on Susan’s medical bills, is equally misplaced.
Opinion at 18. James’s purported liability is unrelated to his
status as a beneficiary and thus Susan’s estate (or James,
individually as her beneficiary), cannot pursue the denial of
benefits and breach of fiduciary duty claims premised on
James’s unrelated direct and personal liability. And in any
event, James is no longer liable to the Rush providers because
the five-year statute of limitations for bringing suit against
James under the Illinois Family Expense Act, 750 ILCS 65/15,
has long since run. The court’s fourth rationale, that “the
possibility of meaningful declaratory relief supports an
exercise of jurisdiction,” is also wrong because there is no
declaratory relief that could affect the legal interests of the
parties. Accordingly, as discussed below, Susan’s estate’s
denial of benefits and breach of fiduciary duty claims are now
moot. The statutory penalty claim, though, is different because
that claim entitles Susan’s estate to monetary damages, which
James, as her beneficiary, inherits and thus that claim is not
moot.
  On the merits, after concluding that Susan’s claims are not
moot, the en banc court adopts, in part, the panel decision in
64                                                   No. 11-1112

Killian v. Concert Health Plan (Killian I), 680 F.3d 749 (7th Cir.
2012). In the panel decision in Killian I, the court affirmed the
district court’s grant of summary judgment for Royal Plan and
Concert on the denial of benefits claim, but required the parties
to stipulate concerning whether the Rush providers were in the
PHCS Open Access network. Id. at 756 n.5. The panel also
affirmed summary judgment on the breach of fiduciary duty
claim, but reversed and remanded the statutory damages claim
because the district court erred in calculating the penalty and
failed to address one of James’s arguments. Id. at 762–64. The
en banc court “adopt[s] the panel’s reasoning and conclusion
related to the denial of benefits and statutory penalties issues.”
Opinion at 3. The en banc court also agrees with the panel that
Royal Plan and Concert were entitled to summary judgment on
James’s claim that the defendants breached their fiduciary duty
by failing to provide Susan with a summary plan description,
because James could not show that the lack of a summary plan
description caused any harm. Opinion at 13. However, the en
banc court holds that reversal on the breach of fiduciary duty
claim is appropriate because a rational finder of fact could
conclude that Concert had a fiduciary duty to inform James
that the Rush providers were out-of-network during the April
7, 2006 telephone conversations; that it breached that duty; and
that that breach resulted in harm to James. Opinion at 39.
   If Susan’s breach of fiduciary duty claim was not moot, the
defendants would nonetheless be entitled to summary judg-
ment on the merits. A breach of fiduciary duty claim premised
on the April 7, 2006, telephone calls fails, first because James
waived any argument that the defendants breached their
fiduciary duty by not informing him, when he called, that the
No. 11-1112                                                    65

providers were out-of-network. And the defendants did not
waive this waiver. Second, even if this theory had not been
waived, there was no breach of fiduciary duty because James
did not put Concert on notice that he was inquiring on the
providers’ network status as in-network or out-of-network
providers. Accordingly, even if this claim is not moot, the
district court’s decision granting the defendants summary
judgment on the breach of fiduciary duty should be affirmed.
The denial of benefits claim is likewise moot, but if it were not,
at this stage remanding to allow the parties to submit a
stipulation concerning the Rush providers’ network status
seems most expedient. If they are unable to do so, the district
court should resolve the dispute. Finally, I agree that remand
on the statutory penalty claims is appropriate, as the panel
decision held and as adopted by the en banc court.
                       II. DISCUSSION
   A. Susan’s breach of fiduciary duty and denial of benefits
      claims are moot because the Killians never paid the
      Rush providers and there is no longer a legal obligation
      to pay those bills. Thus, there is no longer any legal
      harm to Susan’s estate.
   Article III, § 2 of the Constitution grants federal courts the
authority to adjudicate only “actual ongoing controversies.” St.
John’s United Church of Christ v. City of Chicago, 502 F.3d 616,
626 (7th Cir. 2007) (quoting Honig v. Doe, 484 U.S. 305, 317
(1988)). “For a case to be justiciable, a live controversy must
continue to exist at all stages of review, not simply on the date
the action was initiated.” Brown v. Bartholomew Consol. School
Corp., 442 F.3d 588, 596 (7th Cir. 2006). Thus, “[i]t has been
66                                                    No. 11-1112

firmly established that an appeal should be dismissed as moot
when, by virtue of an intervening event, a court of appeals
cannot grant any effectual relief whatever in favor of the
appellant.” A.B. ex rel. Kehoe v. Hous. Auth. of South Bend, 683
F.3d 844, 845 (7th Cir. 2012) (internal quotation omitted).
Moreover, “[a]lthough neither party has urged that this case is
moot, resolution of the question is essential if federal courts are
to function within their constitutional sphere of authority.”
North Carolina v. Rice, 404 U.S. 244, 246 (1971). Accordingly,
“mootness, like standing, is always a threshold jurisdictional
question that we must address even when it is not raised by
the parties.” Wernsing v. Thompson, 423 F.3d 732, 745 (7th Cir.
2005) (internal quotation omitted).
    Under this framework, Susan’s denial of benefits and
breach of fiduciary duty claims are moot. At the time that
James, as administrator of Susan’s estate, filed suit, Susan’s
estate allegedly owed approximately $80,000 in medical bills
to the Rush providers. Killian I, 680 F.3d at 758. Since then,
Susan’s estate had been closed. Actually, Susan’s estate had
been closed in August 2011—prior to both the oral argument
and the release of the panel’s decision in Killian I—but the
court was not informed of this development until September
2012, when James filed a motion to substitute himself as
plaintiff. R.48-2. In that motion, James explained that the only
asset of Susan’s estate was the underlying ERISA claim, that
Susan’s estate had been closed, and that that asset had been
transferred to him. Attached to that motion were the state
court orders confirming these facts. Id. This court granted the
motion and substituted James as the plaintiff.
No. 11-1112                                                     67

     Based on these developments, this court directed the parties
to file supplemental briefing on the question of whether the
closing of Susan’s estate mooted this litigation. Specifically, the
court directed the parties to discuss “with particularity
whether Mr. Killian retains any interest in obtaining relief and
whether the relief sought by Mr. Killian will make a difference
to his legal interests.” R.53. In response, James reopened
Susan’s estate “solely for the purpose of probating the ERISA
claim and prosecuting the claim in the District Court and 7th
Circuit Court of Appeals.” R.58-2. He then requested that this
court substitute the estate back into the case. R.64-1 at 2. The
court deemed this a request to add him in his capacity as
administrator of Susan’s estate, leaving James to pursue this
litigation in that capacity and in his individual capacity.
Opinion 20 at n.26; Opinion at 40.
    The court asserts James’s reopening of the estate resolves
the mootness question because the unpaid medical bills “might
be pursued now against the estate.” Opinion at 22. According
to the court: “In light of the reopening of the estate, the
contention in Judge Manion’s dissent … that there is no
possibility of recovery of the medical bills from the estate, and
therefore no apparent harm to the estate, is not demonstrably
correct.” Opinion at 20. But the estate was reopened “solely for
the purpose of probating the ERISA clam and prosecuting the
claim in the District Court and 7th Circuit Court of Appeals.”
R.58-2. Thus, the estate is not open for purposes of allowing
third-party creditors, such as the Rush providers, to seek
recovery from the estate for medical expenses.
     Nor is there any possibility that the Rush providers could
still reopen the estate and recover on the unpaid medical bills.
68                                                    No. 11-1112

As James stated in his Supplemental Reply Memorandum: “All
claims against the estate are barred by the Illinois Probate Act’s
two-year limitation period, 755 ILCS 5/18-12(b) … Thus, Rush
University and Susan Killian’s other providers cannot collect
anything from her estate.” R.64-1 at 1. James is correct. Section
18-12(b) provides that “[u]nless sooner barred under subsec-
tion (a) of this Section, all claims which could have been barred
under this Section are, in any event, barred 2 years after
decedent’s death, whether or not letters of office are issued
upon the estate of the decedent.” 755 ILCS 5/18-12(b). “The
filing of a claim within the period specified by section 18-12 is
mandatory.” In re Estate of Hoheiser, 424 N.E.2d 25, 28 (Ill. App.
Ct. 1981). And the failure to file a claim within this statutory
period is a bar to recovery, even if the executor had personal
knowledge of the claim. Id. Further, “where a legal claim
should have been, but was not, filed against an estate within
the statutory period, relief will not be accorded by the applica-
tion of equitable principles.” In re Estate of Ito, 365 N.E.2d 1309,
1311 (Ill. App. Ct. 1977). In short, “[n]o exception to the filing
period may be engrafted by judicial decision.” Id. In fact, “[a]
probate court cannot authorize an administrator to pay a claim
after the claim has been barred from payment under the
statute. To authorize payment under these circumstances
would in effect nullify the provision in the statute.” Messenger
v. Rutherford, 225 N.E.2d 25, 94 (Ill. App. Ct. 1967) (internal
citation omitted).
   In this case, Susan died in August 2006 owing the Rush
providers approximately $80,000 in unpaid medical bills.
Susan, though, never paid those medical expenses and Illi-
nois’s two-year limitations period now bars any attempt by the
No. 11-1112                                                                    69

Rush providers to reopen and collect on those unpaid bills5.
Without exception. See supra at 68. And the probate court lacks
authority even to authorize James, as administrator, to pay
those claims. Accordingly, there is no possibility that Susan’s
estate remains liable on the unpaid medical bills.
    The court also reasons that this case is not moot because the
estate has already suffered a concrete and redressable injury,
namely that the Killians were injured by overpaying medical
bills representing co-pay, coinsurance, and annual deductible
amounts, which would have been lower had the services been
obtained from an in-network provider. Opinion at 17–18.
However, James has never claimed, including in his response
to the court’s request for supplemental briefing, that they
overpaid any of the medical providers because of the defen-


5
  The court relies on Schloegl v. Nardi (In re Estate of Perrine), 234 N.E.2d 558,
561 (Ill. App. Ct. 1968), for the proposition that “[i]n Illinois, the fact that an
estate is closed may, but does not necessarily, preclude creditors from
bringing claims against it.” Opinion at 20-21. The court notes that subse-
quent cases have distinguished Schloegl, but that none of those cases
“rejected its conclusion that a claim may be brought against an estate if the
time for bringing such claims has not expired.” Opinion at 21. Schloegl is not
relevant to the case at hand because Schloegl involved a claim brought
within both the governing statute of limitations and the probate’s limitation
period. But in this case, the Rush providers did not file a claim within the
probate act’s two-year limitations period, as required by Section 18-2.
Illinois law is clear that Section 18-2 “imposes additional time constraints for
making certain claims against a decedent’s estate.” Vaughn v. Speaker, 533
N.E. 2d 885, 888 (Ill. 1988) (emphasis in original). And a “court has no
power or jurisdiction to entertain a petition against an estate after the
statutory period has passed.” In re Marriage of Epsteen, 791 N.E.2d 175, 185
(Ill. App. Ct. 2003).
70                                                    No. 11-1112

dants’ purported ERISA violations. Rather, James has
always maintained that the harm Susan’s estate suffered as a
result of the breach was that Susan incurred about $80,000 in
unpaid medical bills.
    The court’s third rationale for why this appeal is not moot
is that “Mr. Killian’s financial affairs are burdened with real
uncertainty. …” Opinion at 22. Here, the court notes that there
is a “sufficiently real possibility that the additional debts may
come Mr. Killian’s way,” Opinion at 20, and finds “Mr.
Killian’s personal liabilities on Mrs. Killian’s debts” relevant.
Opinion at 24 n.28. There are two problems with this reason-
ing.
     First, Susan’s estate brought this litigation to obtain relief
on Susan’s ERISA claims. The court acknowledges that the
claim is “Mrs. Killian’s claim,” but adds that James “inherited
it, and, in any event, the consequence of the resolution of the
dispute, whatever it may be, falls to him alone.” Opinion at 19.
But James did not inherit Susan’s obligation to pay Rush;
Susan’s estate never paid those bills; and those debts did not
reduce the assets that James inherited—there were none. Thus,
the alleged harm did not somehow flow to James as part of the
probate process.
    What the court is doing is conflating the legal interests of
Susan’s estate (which James inherited), and James’s unrelated
individual interests, reasoning that “the dispute in this case
always has been one between Mr. Killian and the defendants
over his wife’s coverage and their family’s resulting liability on
third-party medical debts.” Opinion at 18. While the dispute
underlying this litigation may have always been one between
No. 11-1112                                                                71

James and the defendants,6 the litigation has always been
between Susan’s estate and the defendants. Or as the court
explained “[t]he estate is and has always been a construct to
resolve this dispute.” Opinion at 19. Accordingly, only those
harms which an estate may litigate are relevant. This is a
question of standing which concerns the fundamental constitu-
tional limits of this court. Perry v. Sheahan, 222 F.3d 309, 313
(7th Cir. 2000).
    What then are the harms an estate may litigate? The
administrator of an estate may prosecute claims on behalf of a
deceased plaintiff’s estate which ultimately benefit “the heirs
and any other claimants to the estate, such as his creditors.” See
Anderson v. Romero, 42 F.3d 1121, 1123 (7th Cir. 1994). It is true
that should the estate prevail on the denial of benefits and
breach of fiduciary duty claims, James, who is the estate’s
beneficiary, will benefit. But he will not benefit as a beneficiary.
This point is clear if one considers what would happen if James
were not a beneficiary of Susan’s estate. James’s purported
liability for the medical expenses due the Rush providers is
based on the Illinois Family Expense Act. The Illinois Family
Expense Act provides that spouses are jointly and severally
liable for each other’s medical expenses whether or not they
are living together or separately. Mercy Ctr. for Health Care Serv.


6
   In stating that the dispute in this case has always been between James
and the defendants, the court incorrectly posits that “the creditors appear
to have pursued the path of least resistance and billed Mr. Killian directly.”
Opinion at 18–19. There is no evidence in the record, though, to support this
assumption; in fact, all of the bills, and later the various demand letters
from collection agencies, were addressed to Susan Killian, not James. See,
e.g., R.77-4, R.77-3 at 59.
72                                                             No. 11-1112

v. Lemke, 557 N.E.2d 943, 963–63 (Ill. App. Ct. 1990). If James
were not a beneficiary or heir of Susan’s estate (maybe because
of a divorce subsequent to the provision of medical expenses),
James would still “benefit” by the estate obtaining an order to
pay the Rush providers given that he would have joint liability
under the Act. But the benefit to James would not be because
of his status as a beneficiary of the estate. Thus, the court is
wrong to rely on “persisting uncertainties concerning the
future liability of the estate and its beneficiary” to find this case
not moot, Opinion at 24, because there is no future liability of
James qua beneficiary. And the court’s other explanation for
why the estate can seek a remedy for a direct and personal
harm to James, namely that James stands before this court as
“husband,” is incorrect. Opinion at 20 n.26. James may now
stand before this court in his individual capacity, but the
claims remain Susan’s underlying breach of fiduciary duty and
denial of benefits claims. Id.7
    The statutory penalty claim is a different matter. That claim
allows for monetary damages. Consequently Susan’s estate
(and James individually) can continue to litigate that claim on
behalf of James because as a beneficiary James is entitled to
receive those statutory damages.



7
  A more difficult question is whether an estate has standing to litigate a
breach of contract claim solely for the benefit of a third-party beneficiary of
that contract. The defendants argue that James is not a beneficiary of the
Concert Health Plan and therefore the estate cannot litigate on his behalf.
The court, though, does not rely on a third-party beneficiary theory to
justify the estate’s standing to litigate a purported harm to James. And such
a theory surely would not extend to a breach of fiduciary duty claim.
No. 11-1112                                                              73

    The entire premise that there is a "sufficiently real possibil-
ity that the additional debts may come Mr. Killian’s way" is
also wrong. In response to this court’s request for supplemen-
tal briefing, James identified only one basis for personal
liability—the Illinois Family Expense Act, 750 ILCS 65/15,
which as noted above creates joint and several liability for
spouses’ medical expenses. Because the Illinois Family Expense
Act does not have its own statute of limitations, the catch-all
five-year limitation period applies. See 735 ILCS 5/13–205
(2010); Pope v. Kaleta, 234 N.E.2d 109, 114 (Ill. App. Ct. 1967).
Susan’s brain surgery at Rush occurred in April 2006 and yet
the Rush providers have not initiated litigation against James,
so, now—2013—any claims by them against James would be
time-barred. Thus, any liability, and in turn harm, that James
might have suffered no longer exists8. Accordingly, even if it
were appropriate to consider a harm to James in assessing
whether Susan’s estate’s denial of benefits and breach of
fiduciary duty claims are moot, there is no such harm to James.
    James may well wish that the Rush doctors receive addi-
tional compensation for their services and may desire vindica-
tion for the wrong he perceives. But the test for mootness “is
whether the relief sought would, if granted, make a difference
to the legal interests of the parties (as distinct from their
psyches, which might remain deeply engaged with the merits


8
  The court notes that limitations periods may be tolled “if the party to be
charged makes a partial payment, or new written promise to pay.” Opinion
at 21–22 (citations omitted). James turned over during discovery the
documents related to the unpaid Rush bills. These documents showed no
partial payments and no written promise to pay.
74                                                            No. 11-1112

of the litigation).” Air Line Pilots Ass'n, Int’l v. UAL Corp., 897
F.2d 1394, 1396 (7th Cir. 1990). And in this case, the relief
sought, namely payment of the outstanding medical bills, no
longer makes a difference to the legal interests of Susan’s estate
because the estate is not liable for the outstanding medical
bills; the Rush creditors no longer have a right to payment
from the estate; and James is no longer liable to the Rush
providers.
    Finally, the court reasons that this case is not moot because
of “the possibility of meaningful declaratory relief … .”
Opinion at 23. The court, though, does not explain what such
relief would be, other than suggest that it could be something
that relieves James of his personal liabilities on Susan’s claims.
Opinion at 24 n.28. But as discussed above, the estate cannot
seek relief in favor of James for his direct and personal liability
and in any event there is no such potential liability. Thus, there
is no declaratory relief for the purported denial of benefits and
breach of fiduciary duty claims that could affect the legal
interests of Susan’s estate, its creditors, or its beneficiary qua
beneficiary.9
    In sum, Susan’s estate sued the defendants alleging a denial
of benefits and breach of fiduciary duty under ERISA, assert-
ing as the harm unpaid medical bills totaling approximately
$80,000. But now there is no remaining liability on those claims


9
  I believe the record makes clear that these claims are moot. However, if
there were any question of mootness, the appropriate course of action
would be to remand to the district court for the record to be clarified on the
question of mootness, without the court addressing the merits of the claims.
See Rice, 404 U.S. at 248.
No. 11-1112                                                      75

for Susan’s estate, for creditors, for James qua beneficiary, or
even for James individually. These facts moot Susan’s estate’s
claim because “there is no possible relief which the court could
order that would benefit the party seeking it.” In re River West
Plaza-Chicago, LLC, 664 F.3d 668, 671 (7th Cir. 2011) (internal
quotation omitted) (emphasis added). This court has held
claims pending on appeal are moot in analogous situations. For
instance, when a restitution order was paid by another party
while the appeal was pending, this court held that the appeal
was moot because “[w]e cannot relieve [a party] of an obliga-
tion that has already been extinguished by another party.”
United States v. Balint, 201 F.3d 928, 936 (7th Cir. 2000). See also
Wegscheid v. Local Union 2911, Int’l Union, United Auto., Aero-
space & Agr. Implement Workers of Am., 117 F.3d 986, 990 (7th
Cir. 1997) (“[A] suit cannot be maintained in a court created
under Article III of the Constitution, however egregious the
defendant’s conduct, unless the decision would affect the
tangible interests of the suit. A decision of this appeal, given
that the suitors have obtained all the relief that they need to
protect themselves … could not have such an effect.”) (empha-
sis in original). Here, the obligation to pay has been extin-
guished by operation of law and not by an act of another party,
but the end result is the same. There is no longer a legal
obligation to pay and thus a court order would not bestow on
Susan’s estate, its creditors, or its beneficiary qua beneficiary,
a legal benefit. See Stevens v. Hous. Auth. of South Bend, Ind., 663
F.3d 300, 306 (7th Cir. 2011) (“A case is moot when a plaintiff
no longer has a legally cognizable interest in the outcome.”).
Accordingly, the denial of benefits and breach of fiduciary
duty claims are now moot, but the statutory penalty claim
76                                                 No. 11-1112

remains a live controversy because it allows for money
damages.
     B. James waived any breach of fiduciary duty claim
        premised on the two April 7, 2006, telephone calls to
        Concert and the defendants did not waive that waiver.
    Before the district court, James argued that the defendants
had breached their fiduciary duty to him by failing to provide
a summary plan description. The district court granted the
defendants summary judgment on this claim. James then filed
a motion to reconsider, arguing for the first time that the
defendants also breached their fiduciary duty by not informing
him of the out-of-network status of the Rush providers during
his April 7, telephone conversations with Concert. The district
court denied James’s motion to reconsider, holding that it was
too late to raise an argument premised on the April 7 telephone
conversations.
    By not presenting a timely argument to the district court
premised on the April 7 telephone calls, James waived any
argument that the defendants breached their fiduciary duty
based on those telephone calls. Publishers Res., Inc. v. Walker-
Davis Publ’ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985) (holding
that a litigant who fails to raise an argument in opposition to
a properly raised motion for summary judgment will not be
permitted to raise that same argument later, either in a motion
for reconsideration or on appeal). The en banc court, though,
holds that the defendants waived James’s waiver by failing to
No. 11-1112                                                             77

assert waiver in this court10. Opinion at 11 n.22. But the
defendants had no reason to assert waiver in this court because
James did not develop a breach of fiduciary duty argument in
his appellate briefs premised on the April 7 telephone calls.
Therefore, the defendants did not waive Killian’s waiver.
     Moreover, while a party can waive a waiver by failing to
raise it, the waiver doctrine is “designed for our own protec-
tion as much as that of an opposing party, and therefore need
not be asserted by a party for us to invoke it.” United States v.
Hassebrock, 663 F.3d 906, 914 (7th Cir. 2011). This case presents
such a circumstance—one where, even if the defendants are
deemed to have not asserted waiver, the court should. James
litigated this case for years before the district court and never
developed a breach of fiduciary duty argument premised on
the two telephone calls to Concert. Consequently, neither
James nor Concert developed the record concerning those
telephone calls. And not only did the parties not develop the
record concerning those telephone calls, they did not identify
for the court the relevant portions of the record related to those
telephone calls. This appeal involves a record of over 4,000
pages and the only way this court can properly and fairly
address a breach of fiduciary duty claim premised on those
two telephone calls is for the court—without the aid of the
parties—to tediously sift through the record to understand


10
   Contrary to the court’s assertion that the panel had originally found no
waiver, Opinion at 11 n.22., Killian I bypassed the issue of waiver because
Killian lost on the merits of his claims. See Killian I, 680 F.3d at 757–58
(stating “we will bypass the waiver issue altogether and will address both
of James’s arguments only on the merits”).
78                                                    No. 11-1112

exactly what happened (or rather, what inferences the record
could reasonably support). That review, as discussed at length
below, leads me to conclude that even absent waiver, James
cannot prevail on a breach of fiduciary duty claim premised on
the two telephone calls. But this court should not undertake
such a review in the first instance and should hold James to his
waiver.
     C. James cannot prevail on a breach of fiduciary duty
        claim premised on the two April 7, 2006, telephone calls
        to Concert because James made both calls for pre-
        certification of Susan’s hospital admission and not to
        inquire on the network status of the Rush providers.
        And the enrollment packet Susan received clearly
        informed insureds of the reimbursement rates for out-
        of-network providers and how to inquire on a pro-
        vider’s network status. Further, nothing James said to
        the Concert representatives put them on notice that he
        was concerned about the Rush providers’ network
        status. Accordingly, Concert did not have a fiduciary
        duty to inform James that the Rush providers were out-
        of-network.
   Even if Susan’s breach of fiduciary duty claim were not
moot, the claim fails on the merits. “A claim for breach of
fiduciary duty under ERISA requires the plaintiff to prove: (1)
that the defendant is a plan fiduciary; (2) that the defendant
breached its fiduciary duty; and (3) that the breach resulted in
harm to the plaintiff.” Kenseth v. Dean Health Plan, Inc., 610 F.3d
452, 464 (7th Cir. 2010). The en banc court holds that a reason-
No. 11-1112                                                                    79

able finder of fact11 could find that the defendants breached
their fiduciary duty to Susan by not informing James that the
Rush providers were out-of-network and that this breach of
duty harmed James. Opinion at 36–37. For the reasons detailed
below, I disagree.
         1. James did not call the PHCS dedicated provider
            participation telephone number on April 7, 2006.
            Rather James called Concert twice at the same
            number, which was listed three times on Susan’s
            insurance identification card, twice for utilization
            review and once for customer service.
   The en banc court notes that to review Susan’s breach of
fiduciary duty claim the court must focus on the two April 7,
2006 telephone calls, Opinion at 28, so I begin there as well.
    In discussing the first telephone call James made on April
7, 2006, the en banc court states that James called the “provider
participation” number listed on the front of Susan’s insurance
card.12 Opinion at 6. The panel decision also assumed that to be


11
   Because § 502(a)(3) authorizes only “equitable relief” there is no right to
a jury trial. McDougall v. Pioneer Ranch Ltd. Partnership, 494 F.3d 571, 576 (7th
Cir. 2007); Nat’l Sec. Sys., Inc. v. Iola, 700 F.3d 65, 79 n.10 (3d Cir. 2012); Cox
v. Keystone Carbon Co., 861 F.2d 390, 393 (3d Cir. 1988).

12
   The en banc court also states that “[T]he Killians did not contact Concert
before meeting with Dr. Bonomi because their plan to see Dr. Bonomi for a
second opinion did not depend on whether he was in Mrs. Killian’s
network.” Opinion at 6 (emphasis added). James, though, did not testify
why he had not contacted Concert before Susan’s appointment, and, in fact,
stated that he did not know whether or not Susan had contacted Concert or
                                                                (continued...)
80                                                         No. 11-1112

the case, while noting that no matter which number James
called, there was no breach of fiduciary duty. Killian I, 680 F.3d
at 759. But, as discussed below, by inferring that James called
the PHCS dedicated provider number, both the panel decision
and the en banc decision reflect a misunderstanding of the
record, which is understandable given that James waived the
argument and the parties never briefed the issue or provided
record support for their differing views on which telephone
number James called.
    Contrary to the panel decision and the en banc court’s
conclusion today, the record does not support a reasonable
inference that James called the PHCS dedicated provider
participation number. In fact, in his Rule 56.1 Statement of
Facts, James never claimed he called the PHCS dedicated
provider line, but merely stated he “called one of the 800
numbers on the card” and that he “called another number on
Susan’s insurance card.” R.266 at 2. Nor did James claim in his
affidavit that he first called the dedicated provider line, stating
instead: “I called one of the 800 numbers on the card.” R.266-2
at 2. Then, in his deposition testimony, James first testified:
“[t]here were two numbers on the medical card. I believe one
was for—I believe one of them was for determination of
eligibility of benefits and one was for admittance or a customer
service number. So I believe I called the customer service
number first and later on I called back … .” R.115-3 at 71-72. As
the deposition continued, though, when asked again about the


12
   (...continued)
reviewed the network provider list on the Concert website prior to meeting
with Drs. Barnes and Bonomi. R.115-3 at 30–31, 121.
No. 11-1112                                                         81

telephone calls, and specifically which number he called first
on April 7, James stated “I believe it was the top number,” the
[800-242]-6679 number13. R.115-3 at 117–18. (The number at the
very top of the card is the PHCS dedicated provider participa-
tion number.) And that when he called the second time he
“believe[d] it was the second number,” the customer service
number, 866-818-3106. R.115-3 at 118.
    James’s deposition testimony was thus contradictory
concerning which number he initially called on April 7. This
contradiction is not fatal to James’s case, given that this is
summary judgment and the record must be viewed in the light
most favorable to the non-moving party. But it does show that
James is unclear about what number he actually called on
April 7, which is most likely why he did not assert in his Rule
56.1 Statement of Facts that he called the PHCS dedicated
provider line. R. 266 at 2.
    While James’s uncertainty might not doom his case, his
testimony about the telephone calls makes clear that it was
impossible for him to have first called the PHCS dedicated
provider-line number. Specifically, in explaining in his
deposition what transpired on April 7, James stated that when
he called back the second time, “I talked to a woman named
Maria and I said something about, ‘I’m trying to get confirma-
tion that we are going to be—my wife is going to be admitted
to Rush.’ Again, I said—she just said, like she knew who I was,
she said, ‘Oh, you mean St. Luke’s,’ and she laughed and she

13
   The deposition transcript reads “824-6679,” R.115-3 at 118, which is
presumably a typographical error because the card lists the number for
PHCS as 242-6679.
82                                                   No. 11-1112

sounded like she was talking to the person next to her. That
there were two different phone numbers but they were sitting
next to each other. I believe they were 800 numbers. She said,
‘You mean Rush Presbyterian.’” R.115-3 at 72. James reiterated
this point in his affidavit, stating when he called back the
second time, “[w]hen Maria heard me say ‘St. Luke’s’ she
laughed and said to a colleague, ‘It’s the guy from St. Luke’s.’”
R.87 at 2.
    It is impossible for this scenario to have transpired as James
recounted if he had called the PHCS dedicated provider line
because, as the record establishes, Concert does not run the
dedicated provider line. The PHCS network does. R.115-3 at
200. The only way for the second operator to quip to the co-
worker sitting next to her that it was the guy from “St. Luke’s”
would be if James had called the Concert number both times,
and in the interim, the two Concert representatives were
discussing James’s first call. And the number for Concert was
listed on Susan’s insurance identification card three times,
twice on the front of the card, once for customer service and
once for utilization review, and once on the back of the card for
utilization review. Thus, given James’s own testimony, it was
impossible for James to have first called the PHCS line dedi-
cated to determining provider participation status. He must
have instead called Concert both times.
    Admittedly, the record is not well developed on this point
and for a very simple reason: James never claimed that he
called to determine Rush’s network status and instead testified
expressly and clearly in his deposition that he called to inform
No. 11-1112                                                                83

Concert that Susan was being admitted to the hospital14. See
infra at 87–92. And James never developed a breach of fidu-
ciary duty claim before the district court premised on these
telephone calls; his mention of them in his appellate briefs was
also fleeting. Accordingly, there was no reason for Concert to
develop an argument about these telephone calls, to conduct
further discovery concerning the telephone calls, or to point the
court to the portions of the record related to these telephone
calls and the management of the dedicated provider line by
PHCS. Thus, James’s waiver prejudiced Concert because it
could have sought additional discovery, which might more
clearly negate James’s current argument that he called the
PHCS dedicated provider line to determine Rush’s network
status.15


14
   The court states that while James used the word “preadmission” in his
deposition when telling the attorneys the purpose of his call, he did not
testify that he told the representatives that he was calling for
preadmission.” Opinion at 36 n.45. The court then states that the interaction
with the representatives included “informing the representative of his
location and telling the representative of the needed surgery.” Opinion at
36 n.45. It is true that James never testified that he used the technical term
“preadmission” when talking to the representatives. But he did testify that
he told them: “Susan is going to be admitted”; “I’m trying to get confirma-
tion that we are going to be—my wife is going to be admitted to Rush”;
“she is going—they want to admit her because we already determined the
tumor had to come off”; “I said she was being admitted to the hospital and
they were going to do the surgery … Brain surgery.” R.115-3 at 71–72, 124.

15
   For instance, during James’s deposition, the defendant’s attorney asked
where he made the two telephone calls from, ascertained they were made
from a cell phone, that James still uses that cell phone, and confirmed the
                                                               (continued...)
84                                                            No. 11-1112

    In fact, this entire discussion aptly illustrates why the
waiver doctrine is also designed for the court’s own protection.
Throughout the panel and en banc decisions, the opinions
contradictorily state that James’s first call on April 7 was to
Concert and to the dedicated provider line. See Killian I, 680
F.3d at 752, 757, 759–60; Opinion at 6, 29, 34–35. But if the first
call was made to the PHCS dedicated provider line, then the
first call could not have been made to Concert because, as the
record does establish, the PHCS network operates the 800
number that individuals can call to determine if a provider is
in the caller’s network16. R.115-3 at 200.
   The en banc court sidesteps the issue by stating that Concert
has never disputed the fact that James’s first call was to the
dedicated provider line and the second call was to the Concert



15
    (...continued)
carrier. R.115-3 at 152–53. The defendants could have subpoenaed the
telephone records to confirm the telephone number James called on April
7, 2006, but never did. But they had no reason to do so because James never
claimed that he called to determine network status or that the telephone
calls served to establish a separate breach of fiduciary duty claim. The
defendants could also have attempted to obtain an affidavit from the
representatives who fielded James’s calls to further establish that they came
into the same call center.

16
   Concert cannot be held liable for a breach of fiduciary duty based on the
actions of a non-fiduciary like PHCS. See Kenseth, 610 F.3d at 465 (explaining
that “[f]inding that plan administrators may breach a fiduciary duty
vicariously through the actions of a non-fiduciary would vitiate our
requirement that an ERISA claim for breach of a fiduciary duty must be
asserted against plan fiduciaries”) (internal quotation omitted).
No. 11-1112                                                             85

customer service line. Opinion at 7 n.17. But Concert did.
During oral argument, Concert’s counsel stated that James did
not call the dedicated provider line number. The en banc court
challenged the attorney on this point several times, and after
realizing the en banc court’s confusion, Concert’s attorney
explained why, given James’s testimony, it was impossible for
James to have called the dedicated provider-line number:
Concert and PHCS Network are two distinct entities, each with
separate 800 numbers, separate physical locations, and
different employees. Because this was never an issue before,
Concert never raised it before. And because in his Rule 56.1
Statement of Facts James never asserted that he had called the
dedicated provider line, there was nothing to dispute. R.266 at
2.
    Our review of summary judgment orders requires us to
view all reasonable inferences in the light most favorable to the
non-moving party. But “if the factual context renders the
claims asserted by the party opposing summary judgment
implausible, the party must ‘come forward with more persua-
sive evidence to support their claim than would otherwise be
necessary.’” McDonnell v. Cournia, 990 F.2d 963, 967 (7th Cir.
1993) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). The factual context laid out
above renders James’s recollection of first calling the dedicated
provider line impossible. Rather, given his testimony, James
must have called the same Concert customer service/utilization
number twice on April 7.17


17
     The court responds that the record does not establish whether Concert
                                                             (continued...)
86                                                            No. 11-1112

    The court incorrectly assumes that James first called the
PHCS dedicated provider line. And that assumption is the
lynchpin to the en banc court’s conclusion that a reasonable
finder of fact could find the defendants had a fiduciary duty to
inform James that the Rush providers were out-of-network. See
Opinion at 28 (“Because this line was dedicated to informing
beneficiaries whether providers were in network, Concert
knew (or at the very least, should have known) that beneficia-
ries would call this line to determine a provider’s network
status.”); Opinion at 33 (“Given his earlier telephone conversa-
tion, a reasonable trier of fact certainly could conclude that any
further information as to whether the providers were in Mrs.
Killian’s network would have been provided in the course of
this conversation regarding the authorization of the particular
procedure.”); Opinion at 34 (“It would be reasonable to infer
that this [second] representative knew that Mr. Killian had
attempted to determine whether ‘St. Luke’s’ was in Mrs.
Killian’s network during Mr. Killian’s prior call to the number
for determining provider participation.”); Opinion at 35
(“[T]he second representative’s comments suggest that she was
aware of the earlier call to the network provider number.”).
But because the record does not support a reasonable inference
that James called the dedicated provider line, that cannot serve
as a basis for inferring that James was calling to determine the
network status of the providers. And as discussed below,

17
   (...continued)
shared facilities or employees with PHCS and therefore we cannot assume
that they did not. Opinion at 35 n.45. But it is not reasonable to infer that
two separate legal entities share facilities or employees, absent some
evidence that they do. And there is none in this case.
No. 11-1112                                                    87

James did not call Concert on April 7 to determine the Rush
providers’ network status, but, as he testified, he called
because Susan was being admitted to the hospital and “you
had to call for preadmission.” R.115-3 at 72–73.
       2. James called Concert twice on April 7, 2006, to
          inform Concert that Susan was being admitted to the
          hospital, as required by the insurance policy’s pre-
          certification provisions. James did not call to inquire
          about the network status of the Rush providers and
          nothing James said would put the Concert telephone
          representatives on notice that James was concerned
          about the providers’ network status.
    The en banc court concludes that a reasonable trier of fact
could conclude that James called Concert to determined
whether the Rush providers were in Susan’s network, Opinion
at 30, and that “Concert was aware (or, at the very least, that it
should have been aware) that Mr. Killian was attempting to
determine whether Rush and the physicians who were about
to perform surgery on Mrs. Killian were within Mrs. Killian’s
network.” Opinion at 28. I disagree.
    First, the record does not support the conclusion that James
called Concert to determine whether the Rush providers were
in Susan’s network. In fact, in his deposition James himself
negates any such inference—twice. After summarizing the first
telephone call, James stated: “So that was my reason of the
phone call to tell them she was going to be admitted to the
hospital. And we never determined anything. She said—I
88                                                              No. 11-1112

believe she said, ‘Give me a call back.’”18 R.115-3 at 71. Second,
after discussing both telephone calls, the defendants’ attorney
asked James: “What was it that prompted you to call on April
7th?” James responded: “What prompted me to call? The fact
that she was going to be admitted to a hospital and the fact that
you had to call for preadmission.”19 R.115-3 at 72–73. When


18
     While acknowledging that James testified that he and the Concert
representatives “never determined anything” during the first telephone call,
the en banc court then states that James “also testified that, at the end of the
two calls, he believed that Mrs. Killian’s surgery would be covered
‘[b]ecause nobody ever said these [providers] are out-of-network.’” Opinion
at 30. However, contrary to the court’s statement, James never testified that
“at the end of the two calls, he believed that Mrs. Killian’s surgery would
be covered.” Opinion at 30. Rather, during James’s deposition, James was
asked why he believed, as attested to in his affidavit, “that Susan’s medical
bills would be covered by Concert Health Plan and [why he] had no reason
to believe they would not be covered.” R.115-3 at 135. To that question,
James responded: “Because nobody ever said these are out-of-network.
They are out-of-pocket expenses that you are going to have to incur. You
see enough people, you think somebody would have said something.” Id.
The exchange continued: “Q: At no time did any of the treating physicians
or hospitals tell you that they were out-of-network? A: No.” Id.

19
    The court states that “Mr. Killian testified that, in making the second
telephone call, he was calling ‘for preadmission,’ as he was instructed to do
by Mrs. Killian’s insurance card. … Taking these facts in the light most
favorable to Mr. Killian, a reasonable trier of fact could conclude that Mr.
Killian made the second call to obtain the required ‘certification,’ or
‘UTILIZATION REVIEW,’ for his wife’s surgery.” Opinion at 31 (emphasis
added). The record indicates otherwise. As just quoted, after discussing both
telephone calls, James was asked “[w]hat was it that prompted you to call
on April 7th?” R.115-3 at 72–73. James responded “[t]he fact that she was
going to be admitted to a hospital and the fact that you had to call for
                                                               (continued...)
No. 11-1112                                                            89

asked who told him you had to call for preadmission, James
stated “I believe I read it on the card.”20 R.115-3 at 73.
    Significantly, James never stated in his deposition, or in the
affidavit that he filed in this case, that he called Concert on
April 7 to determine whether the Rush providers were in-
network. Had that been the purpose, or even a purpose of the
call, James’s attorney could (and would) have asked James
whether he had called on April 7 to also determine the Rush
providers’ network status. But his attorney did not, even
though in his complaint James specifically alleged that he
“called Concert Health Plan Insurance Company to confirm
that Rush University was a network provider under the
Concert Health Plan (or Royal Management Corp. Health
Insurance Plan).” R.119-2 at 10. Thus, even though James
alleged in his complaint that he called to confirm the Rush




19
   (...continued)
preadmission.” Id. Moreover, as noted above, in discussing the first
telephone call, James stated “[s]o that was my reason of the phone call to
tell them she was going to be admitted to the hospital.” R.115-3 at 71.
According to James’s own testimony, he made both calls for the same
purpose—because Susan was being admitted to the hospital and you
needed to call for preadmission.

20
   The documents provided to Susan also clearly laid out the importance
of informing Concert of hospitalizations. James, who was not covered by
the insurance and had not reviewed any of the enrollment information
Susan received, knew this from the insurance card and also because he and
Susan had just gone through the same process when Susan had been
admitted to Delnor hospital. R.115-3 at 263–64.
90                                                          No. 11-1112

providers’ network status, when it came time to come forward
with proof to support that allegation, James remained silent21.
    “The purpose of summary judgment is to ‘pierce the
pleadings and to assess the proof in order to see whether there
is a genuine need for trial.’” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). James presented no
evidence that he called Concert on April 7, 2006, to determine
the network status of the Rush providers and he easily could
have made such a statement in his affidavit or deposition
testimony. Because “[a] non-moving party cannot simply rest
on its allegation without any significant probative evidence
tending to support the complaint,” id. at 249, the court is
wrong to infer that James called to determine the Rush provid-
ers’ network status when he had the opportunity to say he did
so for that reason, but did not; and in fact stated a different
purpose when asked, under oath, for the purpose of the call.
    Second, even if James subjectively intended to determine
the network status of the Rush providers when he called
Concert on April 7, the Concert representatives had no reason
to know that that was a purpose of James’s April 7 telephone
calls. In discussing the April 7 exchanges, James explained that
he told the representatives that “Susan is going to be admit-


21
    In his deposition, James also testified that prior to her admission at
Delnor, Susan had a CAT scan at a facility in St. Charles and that he never
called Concert to determine if the facility was in network; he did not know
whether Susan had called. R.115-3 at 120. He also did not know whether
Susan had called to determine Delnor’s network status. R.115-3 at 40. In
fact, it appears that some of the doctors at Delnor were not in Susan’s
network. R.115-3 at 114.
No. 11-1112                                                              91

ted”; “I’m trying to get confirmation that we are going to
be—my wife is going to be admitted to Rush”; “she is
going—they want to admit her because we already determined
the tumor had to come off”; “I said she was being admitted to
the hospital and they were going to do the surgery. … Brain
surgery.” R.115-3 at 71-72, 124. Nothing James said during
these conversations put the Concert representatives on notice
that a purpose of his call was to learn the network status of the
Rush providers. Rather, a reasonable representative would
believe that James telephoned Concert because Concert
required insureds to notify it of hospital admissions—since
that was what James told the telephone representatives. As
James said, in his own words: “I said she was being admitted
to the hospital and they were going to do the surgery. … Brain
surgery.” Under these circumstances, it is not reasonable to
expect the representative to have “instructed Mr. Killian that
she was unable to locate an entry in her system for ‘St. Luke’s’
and that she could make no representations at that time as to
whether the provider was in-network.” Opinion at 31.22


22
   The court’s reasoning that “[t]he first Concert representative’s attempt
to locate ‘St. Luke’s’ suggests that she was aware of his need to determine
Rush’s network status,” Opinion at 35, is also misplaced. To document an
insured’s hospital admission, Concert would need to record the name of the
hospital and Concert’s attempted to locate “St. Luke’s” therefore does not
suggest that the representative was aware of James’s need to determine the
network status. The court also reasons that Concert “should have known
that beneficiaries such as Mr. Killian would be calling this line [the
customer service/utilization review number] to determine whether certain
providers were in their network.” Opinion at 32. But that same number was
given for utilization review and customer service. Opinion at 32. Thus,
                                                              (continued...)
92                                                           No. 11-1112

        3. Kenseth v. Dean Health Plan, Inc., 610 F.3d 452 (7th
           Cir. 2010), is not analogous to the Killians’ situation.
           In Kenseth, the insured specifically asked whether an
           upcoming surgery would be covered under her
           insurance policy and was told by a representative of
           the insurance company that it would be, but the
           insurance company later denied coverage. The
           Certificate of Insurance in that case was ambiguous
           on whether there was coverage and failed to identify
           a means by which a participant could obtain an
           authoritative determination on a coverage question.
           The Certificate also invited participants to call
           customer service with coverage questions but did
           not warn them that they could not rely on any
           advice they received. Kenseth I, 610 F.3d at 469–78.
           Here James did not ask the Concert representatives
           any questions, but merely informed them that Susan
           was being admitted to the hospital. And Susan’s
           Certificate of Insurance was clear on the different
           levels of reimbursement for in-network and out-of-
           network providers and on how to determine the
           network status of a provider.
   In holding that a reasonable finder of fact could conclude
that the defendants breached their fiduciary duty to Susan by


22
    (...continued)
Concert representatives could expect to be told of hospital admissions or
asked question on any topic regarding the health insurance plan, and there
is no reason they would automatically infer that a caller to that number was
seeking to determine the network status of a provider.
No. 11-1112                                                    93

not informing James during the April 7, 2006 telephone calls
that the Rush providers were out-of-network, the court relies
extensively on Kenseth v. Dean Health Plan, Inc., 610 F.3d 452
(7th Cir. 2010). But in doing so, the court separates the lan-
guage of Kenseth from the facts in that case.
    In Kenseth, the plaintiff had undergone a vertical banded
gastroplasty (“VBG”), often colloquially referred to as a
“stomach-stapling,” in 1987. Id. at 457. Years later, as a compli-
cation of the VBG, Kenseth began to suffer from gastric
stenosis, which in turn caused her “to experience a variety of
aliments,” including severe acid reflux, erosion of the esopha-
gus, pneumonia, and severe hair loss. Id. To address these
problems, Kenseth underwent an endoscopic procedure which
initially resolved the problem. Id. at 458. But after it recurred,
Kenseth saw a bariatric surgeon, Dr. Huepenbecker, who
recommended that Kenseth “undergo a Roux-en-Y gastric
bypass procedure as a longer-term solution to the complica-
tions.” Id.
    Prior to the surgery, Kenseth contacted her health insurance
company, Dean Health Plan, to determine whether the surgery
would be covered by insurance. Id. at 459. The Certificate of
Insurance encourages participants to do so, stating: “If you are
unsure if a service will be covered, please call the Customer
Service Department … prior to having the service performed.”
Id. at 458. Kenseth spoke with a customer service representa-
tive, Maureen Detmer, and “averred that she told Detmer she
would be having ‘a reconstruction of a Roux-en-Y stenosis,
[sic]’ and when Detmer asked her to explain the nature of the
surgery, Kenseth told her ‘it had to deal with the bottom of the
esophagus because of all the acid reflux I was having.’” Id. at
94                                                 No. 11-1112

459-60. After checking with her supervisor, Detmer advised
Kenseth that the procedure would be covered by her insur-
ance, subject to a $300 copayment. Id. at 460. Based on these
assurances, Kenseth underwent the surgery on December 6,
2005. Id.
    The day after the surgery, Dean (which under its policy was
not bound by oral representations concerning coverage) denied
coverage for Kenseth’s surgery and all associated services
based on two provisions in Kenseth’s health insurance policy.
First, the policy listed non-covered services as “[a]ny surgical
treatment or hospitalization for the treatment of morbid
obesity.” And in the “General Exclusions and Limitations”
provisions was an exclusion for “[s]ervices and/or supplies
related to a non-covered benefit or service, denied referral or
prior authorization, or denied admission.” Id. at 457. Because
complications from Kenseth’s earlier VBG surgery necessitated
Kenseth’s Roux-en-Y surgery, Dean concluded that the 2005
surgery was not covered; it similarly concluded that there was
no coverage for a second hospital stay necessitated by compli-
cations of the 2005 surgery. Kenseth was left with approxi-
mately $78,000.00 in medical bills.
    Kenseth sued, alleging claims under state law and under
ERISA for breach of fiduciary duty and equitable estoppel. The
district court granted Dean summary judgment and on appeal
this court reversed on the breach of fiduciary duty claim,
stating:
       As we detail below, the facts would permit the
       factfinder to conclude that Dean breached the
       obligation of loyalty it owed to Kenseth by
No. 11-1112                                                  95

       providing her with plan documentation that was
       unclear as to coverage for her surgery, by invit-
       ing her and other participants to call its customer
       service representatives with questions about
       coverage but omitting to warn callers that they
       cannot rely on the answers they are given, and
       by failing to inform participants how they might
       obtain answers from Dean that they could rely
       upon.
       Id. at 464.
    As this summary of Kenseth makes clear, the Killians’
situation now before us is nothing like Kenseth. In Kenseth, the
insured called and asked whether there would be coverage for
a specific surgical procedure. Here James called and informed
Concert that Susan was being admitted to the hospital and
made no inquiry about the Rush providers’ network status or
the reimbursement rates for the medical services. In Kenseth,
the insurance agent, after checking with her supervisor,
erroneously stated that the procedure the plaintiff asked about
would be covered. But after the operation, the insurance
company denied coverage. Here the insurance company did
not make any representations to James concerning whether the
Rush providers were in-network or out-of-network and did not
deny coverage for Susan’s brain surgery. In Kenseth, the
certificate was ambiguous concerning whether the Roux-en-Y
surgery was a covered procedure. With Susan, the certificate
of insurance was clear concerning: (1) the reimbursement rates
paid to in-network and out-of-network providers; (2) an
insured’s responsibility for any expenses above the maximum
allowable fee for out-of-network providers; (3) the need to
96                                                            No. 11-1112

inquire on the network status of the providers either via
telephone or on-line; (4) an insured’s right to choose any
provider they wished; and (5) an insured’s obligation to notify
Concert of any hospital admissions for pre-certification that the
procedure was medically necessary. In Kenseth, this court held
that the insurance company had a duty to disclose to callers
that they could not rely on representations made by agents of
the insurance company that a medical procedure was covered.
That duty to disclose was directly related to the question
Kenseth asked and which the insurance company answered,
namely whether surgery to perform a Roux-en-Y was covered
by the insurance policy. See Kenseth, 610 F.3d at 472 (the
fiduciary exposes itself to liability for the mistakes that plan
representatives might make in answering questions on that
subject) (emphasis added). Here, the information that the
Concert representatives provided James (i.e., that he could go
ahead23 with whatever had to be done and that a hospital
admission for brain surgery was “okay”) concerned pre-
certification and whether the procedure was medically
necessary24. James’s statement that Susan was being admitted


23
   In discussing the “go ahead” given James, the court states that James was
not warned “that the ‘go ahead’ was not to be understood as an authoriza-
tion.” Opinion at 30. But the “go ahead” was an authorization of the only
thing which needed to be authorized—a hospital admission. Concert did
not need to authorize treatment by out-of-network providers, as “the choice
of provider is [the insured’s.]” R.77-3 at 5, 11–12.

24
    The Certificate of Insurance explained what Concert would do upon
receiving notice of a hospital admission, stating it would advise the insured
“if Preservice Review and Precertification of the treatment plan is required”
                                                               (continued...)
No. 11-1112                                                              97

for brain surgery and Concert’s “okaying” of that procedure as
medically necessary, were unrelated to the question of the
network status of the providers25. And finally in Kenseth, the
insured was not told how to definitely determine whether
there was coverage. Here, insureds were told how to determine
if a provider was in-network or out-of-network, including by
calling Concert or the PHCS provider line or going on-line.
Kenseth is therefore distinguishable.
   Notwithstanding these stark differences between Kenseth
and the facts of this case, the en banc court relies on several
passages in Kenseth which summarize general breach of
fiduciary duty principles to support its holding. But even those
passages from Kenseth do not support a breach of fiduciary
duty claim here. For instances, the en banc court relies several
times on passages from Kenseth discussing the fiduciary duty
owed to insureds when the insured “request[s] information”
or poses “questions” to the fiduciary. See, e.g., Opinion at
25–34.
    But in this case, James did not request any information or
pose any questions. Rather, during both telephone calls, James
stated a fact—that Susan was being admitted for brain


24
   (...continued)
by Concert. R.77-3 at 34. A “go ahead with whatever needs to be done” and
an “okay,” confirmed the admission and that Concert did not require any
additional review to certify the hospital admission. R.115-3 at 239.

25
  As noted above, the Certificate explained that precertification review was
a determination of whether a medical service was medically necessary and
that “[p]recertification of medical necessity is subject to the limitations,
exclusions, and provisions of this certificate … .” R.77-3 at 23.
98                                                            No. 11-1112

surgery26 . And Susan was required by her policy to call
Concert and inform them of any hospital admissions, at which
point Concert would inform the insured if something further
was required (i.e., “if Preservice Review and Precertification of
the treatment plan is required” by Concert). R.77-3 at 34. So we
do not have a case where the mere making of the telephone call
implies a question.
    Likewise, “the only status and situation,” Opinion at 25, 34
(quoting Kenseth, 610 F.3d at 466), “circumstance,” Opinion at
25, 29 (quoting Kenseth, 610 F.3d at 466), or “predicament,”
Opinion 26 (quoting Kenseth, 610 F.3d at 467), of which Concert
knew was that Susan had already seen her doctor and was
being admitted for brain surgery. Nothing James said in either
telephone conversation put Concert on notice that the “situa-
tion,” “circumstance,” or “predicament” was that James was
inquiring about the network status of the Rush providers.
Accordingly, those passages from Kenseth provide no support
for the en banc court’s decision.
   The court again quotes Kenseth when reasoning that James
“should not be penalized because he failed to comprehend the
technical difference between ‘[go ahead]’ and ‘the provider is

26
    Brain surgery is obviously medically necessary and it therefore makes
sense that the first Concert representative told James to “go ahead with
whatever had to be done,” but to call back when he knew the correct name
of the hospital. R.259-5 at 124–25. Similarly, once James called back and the
Concert representatives had determine the correct name of the hospital
(Rush), there was nothing to do but “okay” the hospital admission. And
Johny Antony, the Vice President of Operations for Concert, confirmed in
his deposition that approval was given for the brain surgery “based on the
treatment that was being sought.” R.115-3 at 239.
No. 11-1112                                                                 99

in-network].’” Opinion at 30 (quoting Kenseth, 610 F.3d at
467)27 . This case, though, does not involve a “technical differ-
ence,” but rather two very fundamental and distinct concepts
easily understood by the average layperson: (1) An insured
must notify the insurance company of a hospital admission for
pre-certification that the procedure is medically necessary; and
(2) the reimbursement rate for medical providers will depend
on the network status of those providers. The enrollment
documents provided to Susan explained both of these points
clearly and in simple, understandable terms. In short, there is
no technical question involved.




27
   This quote actually originates in Eddy v. Colonial Life Ins. Co. of Am., 919
F.2d 747 (D.C. Cir. 1990), and is then excerpted in Kenseth. Kenseth, 410 F.3d
at 467. In Eddy, the plaintiff learned that his employer was cancelling its
group health insurance coverage just days before he was to undergo
exploratory surgery. The plaintiff called his health insurance company,
explained the situation, and asked whether he could “continue” his group,
employment-based coverage. The insurer told Eddy he could not, but never
mentioned the option of converting to individual coverage. Given the facts
in Eddy, the court held it was a breach of fiduciary duty for the insurer not
to disclose to Eddy that he could convert his policy, stating: “Regardless of
the precision of his questions, once a beneficiary makes known his
predicament, the fiduciary is under a duty to communicate … all material
facts in connection with the transaction which the trustee knows or should
know. Eddy should not be penalized because he failed to comprehend the
technical difference between ‘conversion’ and ‘continuation.’ The same
ignorance that precipitates the need for answers often limits the ability to
ask precisely the right questions.” Id. at 751.
100                                                          No. 11-1112

    Finally, the Certificate of Insurance and the enrollment
packet28 Susan received were not “silent or ambiguous” on the
relevant issues. See Opinion at 26, 38 (quoting Kenseth, 610 F.3d
at 472). Rather, these documents were absolutely clear on the
differing levels of reimbursement for in-network and out-of-
network providers and that insureds were responsible for
charges above the maximum allowable fee. The documents
were also clear on how an insured could determine network
status, providing both directions to call the PHCS network
number or to find the information on-line.29 Further, the
documents clearly explained the importance of notifying
Concert of any hospital admissions for pre-certification of
medical necessity. Because the enrollment packet Susan
received clearly explained all of the relevant provisions, the
defendants did not have a fiduciary duty to remind James of
the basic terms of Susan’s health insurance coverage, such as
that payment reimbursement rates depend, in part, on the


28
   The court is correct that the documents the defendants provided did not
comply with the technical requirements of ERISA. Opinion at 13. But the
enrollment packet Susan received upon enrolling in the Concert health
insurance plan clearly explained all of the relevant provisions in simple,
straightforward terms. And even with this knowledge, Susan chose the less
expensive, and more limited, insurance plan.

29
    James testified that after Susan began receiving bills from Rush, he
attempted to determine the network status of the Rush providers on-line
but was unable to determine whether they were in-network or not. James,
however, also testified that he was “not very computer literate,” R.115-3 at
131, and the record included simple step-by-step instructions with screen
shots showing the simplicity of determining provider network status on-
line, confirming James’s self-assessment. R.259-5 at 10–12.
No. 11-1112                                                            101

providers’ status as in-network or out-of network. See, e.g.,
Griggs v. E.I. DuPont de Nemours & Co., 237 F.3d 371, 381 (4th
Cir. 2001) (“ERISA does not impose a general duty requiring
ERISA fiduciaries to ascertain on an individual basis whether
each beneficiary understands the collateral consequences of his
or her particular election.”); Maxa v. John Alden Life Ins. Co., 972
F.2d 980, 985–86 (8th Cir. 1992) (finding no fiduciary duty
“individually to notify participants and/or beneficiaries of the
specific impact of the general terms of the plan upon them”);
Harte v. Bethlehem Steel Corp., 214 F.3d 446, 454 (3d Cir. 2000)
(stating it is “uncontroversial … that a fiduciary does not have
to regularly inform beneficiaries every time a plan term affects
them”)30
     D. Susan’s denial of benefits claim is moot because she
        never paid the Rush providers and her estate has since
        been closed, so there is no longer any harm to Susan or
        her estate. If her claim were not moot, remand is most
        expeditious.




30
   Because the defendants did not have a fiduciary duty to inform James
that Rush was out-of-network, the breach of fiduciary duty claim cannot
succeed. But even if James could succeed on Susan’s estate’s breach of
fiduciary duty claim, whether monetary payments (which Cigna Corp. v.
Amara, 131 S. Ct. 1866, 1880 (2011), held could be an appropriate equitable
remedy), are appropriate in this case is questionable. See generally Kenseth
v. Dean Health Plan, Inc., 722 F.3d 869, 892 (7th Cir. 2013) (Manion, J.,
concurring).
102                                                   No. 11-1112

    As explained above, Susan’s denial of benefits claim is
moot. However, if that claim were not moot, I remain comfort-
able with the panel’s decision, namely directing the parties to
submit a stipulation concerning the network status of the Rush
providers on remand. Opinion at 3 n.3, 10 n.20. At this point,
that solution seems the most expedient. However, should the
parties be unable to agree to a stipulation, the district court can
easily resolve the issue on remand on the basis of the current
record. Specifically, the district court can rely on the deposition
testimony of Johny Antony, the Vice President of Operations
for Concert, R.115-3 at 250, 270, and correspondence between
Concert and University Anesthesiologists, to confirm the
network status of the Rush providers. R.77-7 at 7, 11.
                      III. CONCLUSION
    James suffered a tragic loss, and finding out that Susan’s
health insurance did not cover about $80,000 in medical
expenses only added to his grief. James deserves sympathy,
but in the final analysis, the mistake was the Killians’ and not
the defendants’. Once they received Susan’s dire and devastat-
ing diagnosis they did not consult with, or consider the terms
of, Susan’s health insurance plan. This is entirely understand-
able, but their mistake does not create liability for the defen-
dants. And in creating such liability today, the court’s decision
has wide-spread ramifications. Health insurance is already
expensive. And the court’s holding will only further increase
the cost of health insurance because insurance companies, to
prevent being held liable for expenses not covered by their
policies, will require their representatives to review the policy
provisions with each caller. This is not a no-cost proposition:
It costs insurance companies money to staff telephones and the
No. 11-1112                                                            103

more policy terms the representatives must cover, the more it
will cost. And the higher the administrative expenses, the
fewer dollars spent on health care—and the higher the premi-
ums. Insureds then may not be able to afford the policy they
prefer and instead may opt for a less costly option with more
restrictions. That is what Susan did in this case: Susan selected
a less expensive health insurance plan that used the PHCS-
Open Access Network, and that choice left Susan were fewer
options and higher out-of-pocket expenses. While it is under-
standable to feel sympathy for those facing significant medical
bills, we cannot bend the law to protect individuals from their
own choices and their own mistakes.31
    Health insurance is also complicated. It must be in order to
address the multitude of potential health care scenarios. ERISA
requires a Summary Plan Description (“SPD”) for that very
reason—to provide lay people a straightforward explanation
of the terms of their health insurance coverage. And I agree
with the court that the defendants did not provide an SPD
which complied with ERISA and that statutory penalties are
appropriate for that failure. But the failure to provide an SPD
that complied with ERISA did not harm Susan because the
defendants provided Susan with an enrollment packet that
clearly explained all of the provisions relevant to Susan’s
situation. Specifically the enrollment packet explained the
reduced reimbursement rates paid to out-of-network providers


31
    I also agree with Judge Easterbrook’s second suggestion that the
majority’s approach can make participants worse off, and I join that portion
of his dissent. Easterbrook, J., concurring in part, dissenting in part, at
51–53.
104                                                  No. 11-1112

and how to determine if a provider was in the PHCS-Open
Access Network. Yet there is no evidence that Susan or James
inquired whether Rush was within her network. Unfortunately
it was not, and as a result Susan was left with hefty medical
bills, although in the end neither Susan, James, nor her now-
closed (for purposes of creditors filing claims) estate paid these
bills. And there is no longer any legal liability on those unpaid
bills. In the final analysis that makes this case, for the most
part, moot. Remanding to hold the defendants liable for
statutory damages for their violations of ERISA is appropriate.
But no more. I CONCUR IN PART and DISSENT IN PART.
