                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-2255
                                   No. 02-2256
                                   ___________

Bonnie L. Geissal, as personal         *
representative of the Estate of        *
James W. Geissal,                      *
                                       *
     Plaintiff - Appellant/            *
     Cross Appellee,                   * Appeals from the United States
                                       * District Court for the
     v.                                * Eastern District of Missouri.
                                       *
Moore Medical Corporation, et al.,     *
                                       *
     Defendants - Appellees/           *
     Cross Appellants.                 *
                                  ___________

                             Submitted: February 10, 2003

                                  Filed: July 31, 2003
                                   ___________

Before HANSEN,* Chief Judge, LOKEN and SMITH, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

      After Moore Medical Corporation (“Moore”) terminated employee James
Geissal in 1993, he elected to purchase continuation health insurance coverage

      *
       The Honorable David R. Hansen stepped down as Chief Judge at the close of
business on March 31, 2003, succeeded by the Honorable James B. Loken.
through Moore’s Group Benefit Plan (the “Moore Plan”). Some months later, the
Moore Plan canceled this coverage when it determined that Geissal was not entitled
to continuation coverage under the Consolidated Omnibus Budget Reconciliation Act
of 1986 (“COBRA”), 29 U.S.C. §§ 1161-1169, which amended the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. Geissal sued
Moore, the Moore Plan, and its administrator, alleging that he was entitled to at least
eighteen months of COBRA coverage. The Supreme Court ultimately agreed and
remanded the case for further proceedings.

       On remand, addressing questions of remedy, the district court denied Geissal
compensatory damages and statutory penalties but granted him an award of
$217,369.70 in attorney’s fees. Geissal’s widow appeals on behalf of his estate,
seeking money damages, penalties, and additional attorney’s fees under 29 U.S.C.
§ 1132(a), (c), and (g). Moore cross-appeals, arguing that the district court erred in
awarding attorney’s fees because Geissal is not a prevailing party. We affirm the
district court in all major respects but remand for further consideration of whether the
estate should recover unreimbursed medical expenses paid by Geissal or the estate.

                                   I. Background

       Throughout Geissal’s employment at Moore, Trans World Airlines (“TWA”)
employed his wife, Bonnie (“Mrs. Geissal”). Geissal as her spouse was covered
under TWA’s health insurance plan (the “TWA Plan”), which was administered by
Aetna Life Insurance Company (“Aetna”). Before Moore terminated Geissal in July
1993, the Moore Plan paid for his ongoing cancer treatments. The Moore Plan is a
self-funded employee welfare benefit plan governed by ERISA and COBRA. After
Geissal’s termination, he elected COBRA continuation coverage under the Moore
Plan and made six monthly premium payments of $148.51 per month. In January




                                          -2-
1994, the Moore Plan cancelled the COBRA coverage and refunded Geissal’s
premium payments because he was also covered by the TWA Plan during this period.

      After the cancellation, Aetna as administrator of the TWA Plan paid nearly all
claims for medical expenses incurred by Geissal between the date of his termination
and January 17, 1995, when the eighteen-month COBRA continuation coverage
period ended. During that period, the TWA Plan paid $86,795.25 to Geissal’s health
care providers and $6,528.65 to Geissal for his covered out-of-pocket expenses.
During this same period, Geissal did not seek reimbursement for expenses incurred
on a trip to Greece for cancer treatment, and he incurred $4,425.55 in medical
expenses that the TWA Plan declined to reimburse.

       Geissal commenced this lawsuit in June 1994, seeking compensatory damages
for past due COBRA benefits, injunctive and equitable relief, penalties under 29
U.S.C. § 1132(c), and costs and expenses including reasonable attorney’s fees. After
Geissal died on June 23, 1995, Mrs. Geissal as representative of his estate was
substituted as plaintiff. The district court granted summary judgment in favor of the
defendants. Geissal v. Moore Medical Corp., 927 F. Supp. 352 (E.D. Mo. 1996). We
affirmed, construing the term “first becomes . . . covered under any other group health
plan” in 29 U.S.C. § 1162(2)(D)(i) as including Geissal’s pre-existing coverage under
the TWA Plan. Geissal v. Moore Medical Corp., 114 F.3d 1458 (8th Cir. 1997). The
Supreme Court granted certiorari, rejected our interpretation of the statute, and
remanded. Geissal v. Moore Medical Corp., 524 U.S. 74, 82, 87 (1998).

       On remand, the principal remedy issue was whether Geissal may recover the
substantial health benefits paid on his behalf by Aetna and the TWA Plan. In
rejecting this claim, the district court ruled that Geissal’s estate was entitled to no
monetary relief under 29 U.S.C. § 1132(a). Geissal v. Moore Medical Corp., 158 F.
Supp. 2d 976 (E.D. Mo. 2001). The court subsequently denied Mrs. Geissal’s motion
for an award of statutory penalties under § 1132(c)(1)(A) but granted in part her

                                         -3-
motion for an award of attorney’s fees under § 1132(g)(1). All of these rulings are
challenged on appeal. We review the summary judgment rulings de novo. See
Phillips-Foster v. Unum Life Ins. Co. of Am., 302 F.3d 785, 794 (8th Cir. 2002).

                               II. Monetary Relief

       Before turning to the applicable ERISA remedial provisions, it may be helpful
to outline the principal issue as to monetary relief -- whether Mrs. Geissal may
recover the health benefits paid to Geissal’s medical providers by Aetna on behalf of
the TWA Plan. The Moore Plan provides that “[b]enefits are not payable for . . .
services for which there is no obligation to pay.” Defendants argue that Geissal and
his estate have no obligation to pay the substantial medical expenses paid by Aetna
under the TWA Plan. Mrs. Geissal concedes she has no obligation to reimburse the
TWA Plan for paying those expenses but argues she is entitled to recover those
benefit payments because the Moore Plan would have paid them but for its wrongful
cancellation of Geissal’s COBRA continuation coverage. Defendants respond that,
assuming the TWA Plan’s coverage was secondary to the Moore Plan’s primary
COBRA coverage, the Moore Plan’s coordination of benefits provisions provide a
remedy to the secondary insurer, the TWA Plan. But those provisions provide no
remedy to the plan participant or beneficiary, who would receive a windfall double
recovery if allowed to recover expenses already paid by a third party. Mrs. Geissal
replies that the third parties in this case -- which include medical providers who
discounted their bills to Aetna, as well as Aetna and the TWA Plan -- have failed to
assert timely claims against Moore and the Moore Plan for reimbursement, so she
should be entitled to recover on their behalf to prevent the self-funded Moore Plan
from being unjustly enriched by its wrongful denial of COBRA coverage.

      Because ERISA preempts state law remedies, the parties agree that Mrs.
Geissal’s right to this remedy must be found in ERISA’s remedial provisions and
more particularly in 29 U.S.C. § 1132(a), which provides in relevant part:

                                        -4-
      (a) . . . A civil action may be brought -

          (1) by a participant or beneficiary -

                                  *   *    *      *   *

             (B) to recover benefits due to him under the terms of his
             plan, to enforce his rights under the terms of the plan, or to
             clarify his rights to future benefits under the terms of the
             plan . . . .

          (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act
          or practice which violates any provision of this subchapter or the
          terms of the plan, or (B) to obtain other appropriate equitable
          relief (i) to redress such violations or (ii) to enforce any
          provisions of this subchapter or the terms of the plan.

The district court concluded that Mrs. Geissal is not entitled to monetary relief under
either § 1132(a)(1)(B) or § 1132(a)(3)(B). On appeal, she challenges both rulings.

        A. Relief Under § 1132(a)(1)(B). The district court concluded that Mrs.
Geissal and the estate may not recover plan benefits under § 1132(a)(1)(B) because
Geissal, the plan beneficiary, is deceased. 158 F. Supp. 2d at 982. The statute
provides that “[a] civil action may be brought . . . by a participant or beneficiary.”
But we have declined to construe this language as precluding ERISA claims after the
participant or beneficiary has died. In Shea v. Esenstein, 107 F.3d 625, 628 (8th
Cir.), cert. denied, 522 U.S. 914 (1997), we held that the representative of a deceased
participant’s estate had standing to sue for breach of ERISA fiduciary duties. In
McGee v. Funderburg, 17 F.3d 1122 (1994), we upheld a widow’s claim for COBRA
continuation benefits without discussing the issue. Addressing the precise question
here at issue, the Third Circuit held that an action for benefits under § 1132(a)(1)(B)
survives the death of the beneficiary because Congress intended ERISA to be
remedial, and “[a]ctions that are remedial in nature generally survive the death of a

                                          -5-
party.” Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244, 248 (3d Cir. 2002). We
agree. Therefore, the district court erred in ruling that Geissal’s estate may not
recover Moore Plan benefits under § 1132(a)(1)(B).1

      (1) That brings us to the main issue, whether Mrs. Geissal may recover benefits
paid by the TWA Plan. Section 1132(a)(1)(B) provides that a participant or
beneficiary may recover “benefits due to him under the terms of his plan.” COBRA
provides that continuation coverage must be “identical to the coverage provided
under the plan to similarly situated beneficiaries.” 29 U.S.C. § 1162(1). The Moore
Plan provides that “[b]enefits are not payable for . . . services for which there is no
obligation to pay.” In our view, the plain language of § 1132(a)(1)(B) and the Moore
Plan preclude Mrs. Geissal from recovering medical expenses paid by another health
insurer. See Larocca v. Borden, Inc., 276 F.3d 22, 30-31 (1st Cir. 2002).

       On appeal, Mrs. Geissal argues that § 1132(a)(1)(B) allows her to recover the
TWA Plan benefit payments and the medical provider discounts under a legal
restitution theory. As support for this novel theory, Geissal relies upon the Supreme
Court’s recent decision in Great-West Life & Annuity Insurance Co. v. Knudson, 534
U.S. 204 (2002), which held that legal restitution may not be recovered under
§ 1132(a)(3) because it is not “equitable relief.” However, Knudson did not address
whether a participant or beneficiary may recover legal restitution under

      1
       The district court relied for its contrary conclusion on Turner v. Fallon
Community Health Plan, Inc., 127 F.3d 196, 198 (1st Cir. 1997), cert. denied, 523
U.S. 1072 (1998), and on Bast v. Prudential Insurance Co. of America, 150 F.3d
1003, 1009 (9th Cir. 1998), cert. denied, 528 U.S. 870 (1999). But those cases
involved claims for money damages for the beneficiary’s death after the plan denied
coverage for a medical procedure the beneficiary could not afford. The courts
decided that § 1132(a)(1)(B) does not permit a damage action for breach of the plan,
only for benefits due under the plan. They did not decide the issue in this case,
whether a beneficiary’s estate may recover money benefits due under the plan before
the beneficiary died.

                                         -6-
§ 1132(a)(1)(B). We doubt that such a remedy is available, because the statute is
expressly limited to claims for benefits due “under the terms of the plan.” But even
if a claim for legal restitution is available under § 1132(a)(1)(B), the Supreme Court
limited the theory to a claim in which the plaintiff can “show just grounds for
recovering money to pay for some benefit the defendant had received from him.”
Knudson, 534 U.S. at 213 (emphasis added) (quotation omitted). Here, any unjust
enrichment of the Moore Plan resulted from benefits indirectly conferred by third
parties, not by Geissal or his estate. Thus, Mrs. Geissal has no claim for legal
restitution.

      (2) Concluding that Mrs. Geissal may not recover TWA Plan payments and
provider discounts does not end our inquiry under § 1132(a)(1)(B). Mrs. Geissal also
argues that the Moore Plan is liable for $4,425.55 in health expenses paid by Geissal
that were not covered by the TWA Plan,2 and for some $9,000 in expenses for cancer
treatments in Greece. Defendants argue that Mrs. Geissal is entitled to no recovery
whatsoever because $1,811.47 of the $4,425.55 was for uncovered expenses, the
remainder is less than COBRA premiums and deductibles that Geissal would have
been required to pay, and the Greek cancer treatments were not covered expenses
because they were “experimental in nature or application.” The district court did not


      2
        This amount does not include unreimbursed medical expenses Geissal incurred
between the end of the eighteen-month COBRA period and June 23, 1995, the date
of his death. Mrs. Geissal argues the Moore Plan is liable for these expenses because
he was entitled to an additional eleven months of COBRA coverage when the Social
Security Administration determined in March 1994 that Geissal was disabled as of
September 3, 1993. We disagree. The COBRA provisions in effect at the time
Geissal was terminated granted eleven additional months of continuation coverage
to a qualified beneficiary “who is determined, under title II or XVI of the Social
Security Act . . . to have been disabled at the time of a qualifying event,” here,
termination. 29 U.S.C. § 1162 (2)(A)(iii) (Supp I. 1989) (emphasis added). As
Geissal was not disabled when he was terminated on July 17, 1993, he did not qualify
for the additional eleven months of COBRA coverage.

                                         -7-
resolve these issues because it ruled that an estate may not recover under
§ 1132(a)(1)(B). As the issues are contested, we remand for further consideration of
whether Mrs. Geissal may recover all or any part of these amounts as “benefits due
. . . under the terms of his plan.” We note that this case is very old, and we encourage
the parties to settle this small remaining part of the original dispute. To encourage
common sense in this regard, we instruct the district court that any attorney’s fee
awarded for the proceedings on remand may not exceed one-third of the remaining
amounts in controversy.

       B. Relief Under Section 1132(a)(3). Alternatively, Mrs. Geissal argues that
she may recover TWA Plan payments and provider discounts under 29 U.S.C.
§ 1132(a)(3)(B), which provides that a participant or beneficiary may obtain
“appropriate equitable relief” to redress ERISA violations. Mrs. Geissal argues that
this provision entitles her either to equitable restitution or to an order directing the
Moore Plan to pay Geissal’s medical expenses into a constructive trust for the benefit
of the TWA Plan and Geissal’s health care providers.3

      As the district court recognized, 158 F. Supp. 2d at 981, we have twice held
“that where a plaintiff is ‘provided adequate relief by the right to bring a claim for
benefits under . . . § 1132(a)(1)(B),’ the plaintiff does not have a cause of action to
seek the same remedy under § 1132(a)(3)(B).” Conley v. Pitney Bowes, 176 F.3d
1044, 1047 (8th Cir. 1999), cert. denied, 528 U.S. 1136 (2000), quoting Wald v.
Southwestern Bell Corp. Customcare Med. Plan, 83 F.3d 1002, 1006 (8th Cir. 1996);


      3
        Geissal first suggested the constructive trust remedy in the middle of her
lengthy, scatter-gun reply brief. The theory is unsound, in part because it is not
“appropriate” equitable relief to make the plan beneficiary’s estate a constructive
trustee for third parties who could have, but did not, assert their own rights against
the beneficiary and/or the Moore Plan. See Larocca, 276 F.3d at 31; Lutheran Med.
Ctr. v. Contractors Health & Welfare Plan, 25 F.3d 616, 619 (8th Cir. 1994);
Winstead v. J.C. Penney Co., 933 F.2d 576, 579-80 (7th Cir. 1991).

                                          -8-
accord Larocca, 276 F.3d at 28-29, and cases cited). As the Supreme Court observed
in Varity Corp. v. Howe, 516 U.S. 489, 515 (1996), “where Congress elsewhere
provided adequate relief for a beneficiary’s injury, there will likely be no need for
further equitable relief, in which case such relief normally would not be
‘appropriate.’” Thus, Mrs. Geissal may not seek to recover these amounts both as
benefits due under § 1132(a)(1)(B) and as equitable restitution under § 1132(a)(3).

        Mrs. Geissal argues her right to this kind of equitable relief was established by
our decision in McGee, 17 F.3d at 1126. We disagree. Our opinion in McGee did not
identify the ERISA remedial provision under which we granted COBRA coverage
relief. McGee is best viewed as granting relief under § 1132(a)(1)(B). Indeed, if our
decision in McGee was based upon the grant of equitable relief under § 1132(a)(3),
it was superseded by the Supreme Court’s subsequent decision in Varity Corp. as
construed by this court in Conley and Wald.

                               III. Statutory Penalties

       COBRA requires that a plan administrator notify any qualified beneficiary “of
such beneficiary’s rights under [COBRA]” upon the occurrence of a qualifying event.
29 U.S.C. § 1166(a)(4). ERISA remedies include a provision that an administrator
who breaches this duty “may in the court’s discretion be personally liable to such
participant or beneficiary in the amount of up to $100 a day.” 29 U.S.C. § 1132(c).

      At termination, Moore sent Geissal a written COBRA notice and election form
substantially similar to the Department of Labor model COBRA notice. Mrs. Geissal
argues that the Moore Plan administrator is nonetheless liable for § 1132(c) penalties
because (i) the notice failed to advise that Geissal would be entitled to an additional
eleven months of COBRA coverage if the Social Security Administration determined
he was disabled at the time of the qualifying event; and (ii) Moore later revoked
COBRA coverage based upon an interpretation of the statute later rejected by the

                                          -9-
Supreme Court. The district court declined to assess penalties, concluding that
Moore’s notice was based upon a reasonable interpretation of the law. We review
that ruling for abuse of discretion. Chesnut v. Montgomery, 307 F.3d 698, 703 (8th
Cir. 2002).

       Section 1132(c) authorizes penalties for noncompliance with the notice
requirements of § 1166(a)(4). See Chesnut, 307 F.3d at 704. Therefore, the issue
under § 1132(c) is whether the plan administrator gave a proper notice, not whether
Geissal was improperly denied COBRA continuation coverage. The notice must
adequately inform the beneficiary of the COBRA coverage he is entitled to receive
(or, in this case, arguably entitled to receive) and the money owed to maintain this
coverage. Lincoln Gen. Hosp. v. Blue Cross/Blue Shield, 963 F.2d 1136, 1140 (8th
Cir. 1992). Here, the only alleged deficiency in the initial notice was its failure to
advise that coverage was available for a longer period if Geissal was disabled on the
date of his termination. As we have noted, Geissal was not eligible for this additional
continuation coverage. See supra note 2. Mrs. Geissal argues that, with proper
notice, Geissal could have persuaded the Social Security Administration to adopt an
earlier onset date, thereby making him eligible. We reject this contention as entirely
speculative. Moreover, to trigger the additional coverage, the qualified beneficiary
must notify the plan administrator of the disability determination. See 29 U.S.C.
§ 1166(a)(3) (Supp. I. 1989). Geissal gave no such notice before the Moore Plan
administrator sent him the July 1993 COBRA notice. Finally, because Geissal elected
continuation coverage, no harm resulted from this alleged notice deficiency. See
Chesnut, 307 F.3d at 702. In these circumstances, the district court did not abuse its
discretion in refusing to impose § 1132(c) penalties for the Moore Plan
administrator’s good faith attempt to comply with the COBRA notice requirements.




                                         -10-
                              IV. Attorney’s Fee Issues

        ERISA’s remedial provisions include the discretion to award attorney’s fees
to either party: “In any action under this subchapter . . . by a participant, beneficiary,
or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs
of action to either party.” 29 U.S.C. § 1132(g)(1). At the end of this protracted
litigation, the district court concluded that Mrs. Geissal was a prevailing party and
awarded her $217,369.70 in attorney’s fees and expenses. In arriving at that amount,
the court determined a reasonable fee using the lodestar method and then reduced the
fee by fifty percent because of her limited success. On appeal, Mrs. Geissal argues
she is entitled to a substantially increased award. In their cross appeal, defendants
argue the fee award should be overturned because Mrs. Geissal is not a prevailing
party. Reviewing the district court’s fee award for abuse of discretion, we reject both
contentions. See Griffin v. Jim Jamison, Inc., 188 F.3d 996, 997 (8th Cir. 1999)
(standard of review).

       A. Was a Fee Award Proper? In responding to the cross appeal, Mrs.
Geissal initially argues that she need not be a prevailing party to receive a fee award
under § 1132(g)(1). Though she cites no support for this contention, it is an
interesting issue that has received considerable attention in other circuits. See Gibbs
v. Gibbs, 210 F.3d 491, 501-03 (5th Cir. 2000) (citing cases discussing attorney’s
fees in ERISA cases). This court has frequently assumed that only prevailing parties
may be awarded fees in ERISA cases. See, e.g., Martin v. Ark. Blue Cross & Blue
Shield, 299 F.3d 966, 970-71 (8th Cir. 2002) (en banc), cert. denied, 123 S. Ct. 967
(2003) (overruling the presumption that ERISA prevailing parties are entitled to a fee
award); Jackson v. Metro. Life Ins. Co., 303 F.3d 884, 890 (8th Cir. 2002) (vacating
a fee award after reversing on the merits). The fact that the statute does not expressly
limit fee awards to prevailing parties is significant, but not conclusive. In
Ruckelshaus v. Sierra Club, 463 U.S. 680, 693 (1983), for example, a divided
Supreme Court concluded that “the language and legislative history of § 307(f) [of

                                          -11-
the Clean Air Act] do not support respondents’ argument that the section was
intended as a radical departure from established principles requiring that a fee
claimant attain some success on the merits before it may receive an award of fees.”
But we do not read the decision in Ruckelshaus as necessarily meaning that the Court
would construe what it has often referred to as “ERISA’s carefully crafted and
detailed enforcement scheme” the same way. Knudson, 534 U.S. at 209 (quotation
omitted). In this case, we agree with the district court that Mrs. Geissal was a
prevailing party for fee award purposes. Therefore, we leave unresolved the question
whether, in ERISA cases, a district court may only award attorney’s fees to a
prevailing party.

       Defendants argue that Mrs. Geissal was not a prevailing party because she was
granted no relief. We agree with the district court that she became a prevailing party
when “she obtained a favorable ruling from the United States Supreme Court that
Moore’s basis for denying Geissal benefits was invalid.” The Supreme Court has
expressly recognized that a fee award may be appropriate when a party “ha[s]
established the liability of the opposing party, although final remedial orders ha[ve]
not been entered.” Hanrahan v. Hampton, 446 U.S. 754, 757 (1980). To be sure,
such an interlocutory order must create a “material alteration of the legal relationship
of the parties” to confer prevailing party status. Texas State Teachers Ass’n v.
Garland Indep. School Dist., 489 U.S. 782, 792-93 (1989). That test is satisfied by
the Supreme Court’s ruling that Geissal was entitled to COBRA continuation
coverage. This ruling would have entitled Geissal to injunctive relief had the
coverage period then been unexpired, and it entitled his estate to seek monetary relief
under § 1132(a)(1)(B), which for the most part it was unable to prove.

       B. Was the Fee Award an Abuse of Discretion? In determining the amount
of attorney’s fees to award, the district court first applied the five-factor test set forth
in Lawrence v. Westerhaus, 749 F.2d 494, 495-96 (8th Cir. 1984), and then applied
the lodestar method to calculate a reasonable fee. Mrs. Geissal argues the court

                                           -12-
abused its discretion when it set lead counsel’s lodestar rate at $250 per hour, rather
than the $350-$500 per hour requested; when it failed to enhance the lodestar rate;
and when it reduced the award by fifty percent because of her limited success in the
litigation. After careful review of the record, we reject these contentions. The
Supreme Court’s favorable ruling came nearly three years after Geissal died. Mrs.
Geissal’s attorneys then spent approximately 750 hours pursuing novel damage
theories that were determined to be almost totally without merit. “A reduced fee
award is appropriate if the relief, however significant, is limited in comparison to the
scope of the litigation as a whole.” Hensley v. Eckerheart, 461 U.S. 424, 440 (1983).
Here, Mrs. Geissal prevailed on the question of liability and then wasted valuable
resources of all the parties, including an ERISA plan, in litigating monetary remedy
questions that should have been settled. The district court did not abuse its discretion
in reducing by fifty percent the award determined by the lodestar method.

       The judgment of the district court is reversed and the case is remanded for
further consideration of the issues discussed in Part II.A.(2) of this opinion. In all
other respects, the judgment of the district court is affirmed. Appellant’s Motion To
Strike Supplemental Appendix is denied.

      A true copy.

          Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -13-
