                              NOT RECOMMENDED FOR PUBLICATION
                                     File Name: 19a0265n.06

                                                  No. 18-1828


                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                                                                               FILED
    KAREN BRIGGS, individually and as personal )                                              May 23, 2019
    representative of the Estate of Christopher A. )                                    DEBORAH S. HUNT, Clerk
    Neumann,                                       )
                                                   )
           Plaintiff-Appellant,                    )
                                                   )
    v.                                             )
                                                                         ON APPEAL FROM THE
                                                   )
                                                                         UNITED STATES DISTRICT
    NATIONAL         UNION        FIRE  INSURANCE )
                                                                         COURT FOR THE WESTERN
    COMPANY           OF        PITTSBURGH,    PA; )
                                                                         DISTRICT OF MICHIGAN
    INTERPUBLIC GROUP OF COMPANIES, INC. )
    WELFARE BENEFIT PLAN; INTERPUBLIC )
    GROUP OF COMPANIES, INC.,                      )
                                                   )
           Defendants-Appellees.                   )
                                                   )

BEFORE:            SUHRHEINRICH, BUSH, and READLER, Circuit Judges.

           SUHRHEINRICH, Circuit Judge. After Christopher A. Neumann died in a private plane

crash, Neumann’s mother and beneficiary, Plaintiff Karen Briggs, claimed benefits under

Neumann’s accidental death and dismemberment policy (“AD&D Policy”), issued by Defendant

National Union Fire Insurance Company (“NUFIC”). Neumann, an employee of Defendant

Interpublic Group of Companies, Inc. (“IPG”), purchased the optional AD&D benefits as part of

Defendant IPG’s ERISA Welfare Benefit Plan (“Plan”) (collectively “IPG Defendants”). NUFIC

denied Briggs’s claim under an aerial navigation exclusion in the Policy for insureds who die in a

private plane crash. She then sued NUFIC and the IPG Defendants under ERISA. 1 The district



1
    The Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.
No. 18-1828, Briggs v. National Union Fire Insurance, et al.


court dismissed all of Briggs’s claims and entered judgment in favor of all defendants. For the

following reasons, we affirm the judgment of the district court.

                                        I. BACKGROUND

                                              A. Facts

       IPG offers its employees various voluntary benefits under its Plan, as outlined in the Plan

Document. The Plan Document incorporates by reference third-party insurance policies, including

NUFIC’s AD&D Policy.

       The Plan and AD&D Policy make NUFIC the Claims Administrator of the AD&D Policy.

The Plan also makes NUFIC the named fiduciary for the AD&D Policy. The AD&D Policy

requires that notice of claims and proof of loss be furnished to NUFIC, and both documents state

that any benefits will be paid by NUFIC.

       IPG provided employees with an “overview” of “choices available” in a booklet entitled

“Your Benefits Guide 2011.” Choices include AD&D insurance. The Benefits Guide explains

that if an employee chooses “coverage under the [AD&D Policy] and [he] or a family member

suffers injury or dies as a result of an accident, the Plan will pay” 100% coverage for “Loss of . . .

Life.” However, on the bottom of the last page of the Benefits Guide, (and the last of several blank

pages), in somewhat fine print, it states:

       This Benefits Guide provides a general description of the various benefit plans
       offered by The Interpublic Group of Companies, Inc. (“the Company”) to its
       employees and employees of participating units in 2011. This Benefits Guide is
       provided to assist you in making elections during enrollment for the 2011 plan year.
       The information in this Benefits Guide is subject to and qualified by the terms and
       conditions contained in the official plan documents, including summary plan
       descriptions, for the plans that provide the benefits listed in this Benefits Guide.
       This Benefits Guide is not an official plan document or summary plan description
       for the benefit plans. Although the Company intends to continue the benefit plans
       indefinitely, the Company reserves the right to change, amend or terminate any of
       the benefit plans at any time. For more information about the benefit plans, please
       contact your local Benefits Administrator.

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No. 18-1828, Briggs v. National Union Fire Insurance, et al.



The Benefits Guide does not address enrollment information, premiums, the claims process, or

coverage exclusions under the AD&D Policy

         The Benefits Guide was the only document distributed to employees about the AD&D

Plan.

         Neumann was an employee of Weber Shandwick, a division of IPG. He enrolled in

NUFIC’s AD&D Policy on October 6, 2011. He selected $1,000,000 in coverage for himself and

an additional $600,000 in coverage payable to his dependent, Todd Glenn Lloyd, in the event of

an accidental death. His premiums were approximately $19.60/month ($235.20/year). Lloyd was

automatically designated as Neumann’s beneficiary under the Policy, and Neumann made his

mother, Briggs, the contingent beneficiary.

         On January 6, 2014, Neumann and Lloyd died in a private plane crash near Boyne City,

Michigan. Lloyd was flying the plane; Neumann was the sole passenger. There is no dispute that

Neumann was not a ticketed passenger. Shortly thereafter, Briggs submitted a claim for AD&D

benefits to all three defendants through NUFIC’s Claims Administrator, AIG Claims Services of

Shawness, Kansas (“AIG”).2

         AIG denied Briggs’s claim under the aerial navigation exclusion of the policy and notified

Briggs of her right to appeal. The AD&D Policy excludes from coverage any loss caused by “flight

in . . . any vehicle used for aerial navigation, other than as a fare-paying passenger on a scheduled

or charter flight operated by a scheduled airline whether as a passenger, pilot, operator or crew

member” (“aerial navigation exclusion”). Briggs’s administrative appeal was also denied.




2
 AIG also assisted Briggs in submitting a claim under a voluntary life insurance policy. Briggs received $1.12 million
dollars under that policy as the beneficiary of Neumann and Lloyd.

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No. 18-1828, Briggs v. National Union Fire Insurance, et al.


                                              B. Procedural History

           Briggs sued under ERISA. Count I sought benefits from NUFIC under the AD&D Policy

pursuant to § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B).3 Count II sought benefits from the Plan

pursuant to § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). Count III requested reformation of the

Plan pursuant to § 502(a)(3). Count IV sought equitable relief against NUFIC for breach of

fiduciary duty under § 502(a)(3). Count V asked for the same relief against IPG. Count VI

requested civil penalties against IPG pursuant to § 502(c)(1)(B) for IPG’s failure to produce a

summary plan description when Briggs asked for it on July 23, 2014. The Interpublic Defendants

and NUFIC each moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6).

           On August 8, 2017, the district court dismissed Count II against IPG (but not the Plan),

holding that IPG was not a proper defendant for Briggs’s § 502(a)(1)(B) benefits claim. The court

also dismissed Briggs’s § 502(a)(3) claims for equitable relief against IPG and the Plan (Counts

III and V), and NUFIC (Count IV), because Briggs could not show that the IPG Defendants or

NUFIC misrepresented the terms of the insurance plan. The court rejected Briggs’s argument that

the Benefits Guide, the only document Neumann received, was a misrepresentation because it

failed to disclose terms that defeat coverage. The court rejected this argument because explicit

language in the Benefits Guide stated that it was not an official plan or summary plan description.

           This left Briggs’s § 502(a)(1)(B) claim for benefits against the NUFIC and the Plan (Counts

I and II).4 On July 6, 2018, the district court issued a final order and judgment on the parties’

cross-motions for summary judgment on the administrative record, holding that the AD&D Policy

expressly excluded benefits. The court stated that NUFIC’s and the Plan’s “alleged failure to




3
    All references are to the First Amended Complaint, referred to simply as the “complaint.”
4
    Briggs’s does not appeal this ruling however.

                                                          -4-
No. 18-1828, Briggs v. National Union Fire Insurance, et al.


disclose the full policy provisions d[id] not entitle Briggs to a substantive award for benefits.” The

court again rejected Briggs’s argument that she was entitled to equitable relief under § 502(a)(3),

explaining that under ERISA, the written terms of the plan documents, here the AD&D Policy,

governed any entitlement to benefits. The court also rejected Briggs’s argument that the Benefits

Guide qualified as a summary plan description under ERISA. Finally, the court denied civil

penalties under § 502(c)(1)(B), 29 U.S.C. § 1132(c)(1)(B).

           On appeal Briggs argues that the district court erred in dismissing (1) Count III under §

502(a)(3) to reform the Plan to conform to the terms of the Benefits Guide; (2) Count IV under §

502(a)(3) against NUFIC for failing to deliver accurate insurance coverage information; and (3)

Count V under § 502(a)(3) to surcharge IPG for providing an inaccurate Benefits Guide to

Neumann.5 Briggs asks this court to reverse the district court’s August 8, 2017 order and July 6,

2018 order and judgment and hold that she is entitled to equitable relief under § 502(a)(3),

29 U.S.C. § 1132(a)(3), and to recover AD&D benefits pursuant to § 502(a)(1)(B), 29 U.S.C.

§ 1132(a)(1)(B).6

                                                   II. ANALYSIS

           Briggs concedes on appeal that “under a literal reading of the NUFIC policy, coverage for

death occurring in private aircraft travel is excluded.” In other words, she is not entitled to benefits

under § 502(a)(1)(B) because the AD&D Policy unequivocally precludes coverage under the

undisputed facts of this case; namely that Neumann died in a private plane crash. See 29 U.S.C.

§ 1132(a)(1)(B) (“A civil action may be brought . . . by a participant of beneficiary . . . to recover




5
 Although asserted as two counts, Counts III and V, Briggs alleged only a single breach of fiduciary duty claim based
on an alleged misrepresentation with alternative remedies—reformation or other equitable relief.
6
    She does not appeal her claim for statutory penalties under § 502(c).

                                                           -5-
No. 18-1828, Briggs v. National Union Fire Insurance, et al.


benefits due him under the terms of his plan . . . .”) (emphasis added).7 She also acknowledges

that a claim under § 502(a)(3) may not be a repackaged claim for benefits under § 502(a)(1)(B).

See Rochow v. Life Ins. Co. of N. Am., 780 F.3d 364, 373 (6th Cir. 2015) (en banc) (“Impermissible

repackaging is implicated whenever, in addition to the particular adequate remedy provided by

Congress, a duplicative or redundant remedy is pursued to redress the same injury.”) Instead,

Briggs maintains on appeal that she is entitled to equitable relief under § 502(a)(3) for breach of

fiduciary duty because she has alleged an injury separate and distinct from the denial of benefits.

See 29 U.S.C. § 1132(a)(3) (allowing participants or beneficiaries “to obtain other appropriate

equitable relief”). Specifically, she claims that IPG and the Plan breached their fiduciary duty by

(1) tendering an inaccurate Benefits Guide; (2) failing to deliver a summary plan description; and

(3) failing to ensure that NUFIC provided Neumann with a certificate of insurance She claims

similar relief from NUFIC for its failure to provide Neumann with a copy of the AD&D Policy

and certificate of insurance. She therefore contends that the district court erred by enforcing the

aerial navigation exclusion because it is not listed in the Benefits Guide.

                                             A. IPG Defendants

        Providing a Misleading Benefits Guide.                 The Supreme Court and this Court have

recognized that § 502(a)(3) “authorizes district courts to remedy ‘false or misleading’ statements

in summary plan descriptions with ‘appropriate equitable relief.’” Butler v. FCA US, LLC, 706 F.

App’x 256, 258 (6th Cir. 2017) (citing CIGNA Corp. v. Amara, 563 U.S. 421, 438–42 (2011)). To

state a breach of fiduciary claim based on a purported misrepresentation, a plaintiff must plead

facts showing that (1) the defendant, while acting in a fiduciary capacity, (2) made a material

misrepresentation, (3) that the plaintiff relied on. See Moore v. Lafayette Life Ins. Co., 458 F.3d


7
 As the district court noted, this conclusion is inescapable regardless of the standard of review applied—de novo or
arbitrary and capricious—so we need not address the parties’ arguments on that front.

                                                        -6-
No. 18-1828, Briggs v. National Union Fire Insurance, et al.


416, 433 (6th Cir. 2006). “[A] misrepresentation is material if there is a substantial likelihood that

it would mislead a reasonable employee in making an adequately informed decision . . . .” James

v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 449 (6th Cir. 2002) (quoting Krohn v. Huron Mem’l

Hosp., 173 F.3d 542, 547 (6th Cir. 199)).

       Misrepresentation. Briggs avers that IPG and the Plan provided materially inaccurate

information regarding AD&D coverage because the Benefits Guide states that if “you or a family

member suffers an injury or dies as a result of an accident, the Plan will pay . . . benefits.” She

seeks equitable relief in the form of reformation of the Plan (Count III) and a surcharge against

IPG (Count V).

       “But we presume that participants read the entire summary, interpreting provisions in

context.” Butler, 706 F. App’x at 258. Context, as is usually the case, is key here. As the district

court held, the Benefits Guide relied upon by Neumann “is not a summary plan description” or a

controlling plan document,” because it “explicitly” states that “This Benefits Guide is not an

official plan document or summary plan description for the benefit plans.’” (emphasis added by

district court). See Candeub v. Blue Cross Blue Shield of Mich., 577 F. Supp. 2d 918, 931-32

(W.D. Mich. 2006) (stating that “[t]he massive weight of authority, then, is that insurance booklets

do not qualify as SPDs, unless they contain all or substantially all of the required information under

the statute and regulation”). Even so, summary plan documents themselves, “important as they

are, provide communication with beneficiaries about the plan, but . . . their statements do not

themselves constitute the terms of the plan for purposes of § 502(a)(1)(B),” Amara, 563 U.S. at

438, unless “the summary itself so provides.” Butler, 706 F. App’x at 258. In light of the Benefits

Guide’s unambiguous language, no reasonable employee could interpret the Benefits Guide as a

summary plan description, let alone a document containing all the material terms, conditions, and



                                                 -7-
No. 18-1828, Briggs v. National Union Fire Insurance, et al.


exclusions for AD&D benefits. This conclusion is highlighted by another sentence in the Benefits

Guide directing employees to contact their local Plan Administrator “for more information about

benefit plans.”

       Absent a plausible allegation of a misrepresentation, let alone a material one, the district

court properly dismissed all of Briggs’s § 502(a)(3) claims against the IPG Defendants pursuant

to Fed. R. Civ. P. 12(b)(6) and the familiar pleading requirements outlined in Iqbal and Twombly.

See Ashcroft v. Iqbal, 556 U.S. 662, 677–80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555–56 (2007). Contrary to Briggs’s assertion on appeal, the district court did not err in

considering the Benefits Guide because it is referenced in her complaint. See Amini v. Oberlin

Coll., 259 F.3d 493, 502 (6th Cir. 2001); Weiner v. Klais & Co., 108 F.3d 86, 88–90 (6th Cir.

1997) (a court may consider a document not formally incorporated by reference in a complaint

when the complaint refers to the document and the document is central to the claims); abrogated

on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).

       The cases Briggs cites—Deschamps and Krohn—do not help her because in each instance

the plaintiff inquired directly about the availability of certain benefits, and the defendants gave

inaccurate and incomplete information in response. See Deschamps v. Bridgestone Americas Inc.

Salaried Emps. Ret. Plan, 840 F.3d 267, 271–72, 278 (6th Cir. 2016); Krohn v. Huron Mem’l

Hosp.; 173 F.3d 542, 545, 547–49 (6th Cir. 1999); cf. Sprague v. General Motors Corp. 133 F.3d

388, 405–06 (6th Cir. 1998) (finding no breach of fiduciary duty where employer did not offer

misleading information about the possibility of a pension plan changing).                In Gregg v.

Transportation Workers of America International, we found a genuine issue of material fact as to

whether the defendants materially misled the participants although each individual policyholder’s

certificate explained that insured’s right to inspect the group master policy available to participants



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No. 18-1828, Briggs v. National Union Fire Insurance, et al.


“during normal business hours.”              We found that this did not constitute disclosure “in any

meaningful sense” because the master policy was in faraway states. 343 F.3d 833, 844 (6th Cir.

2003). Briggs does not allege that Neumann faced similar hurdles or otherwise asked for additional

information and did not receive it. And in James v. Pirelli Armstrong Tire Corporation, the

employer, on its own initiative, provided materially misleading and inaccurate information about

the future benefits of a plan. 305 F.3d 439, 455–56 (6th Cir. 2002).8

         Detrimental Reliance. The complaint is equally deficient in the reasonable-reliance-

allegation department. The complaint does not allege that Neumann read the Benefits Guide and

concluded that AD&D benefits would be payable in the event of a private airplane crash; instead

it says, without factual support, that IPG “induc[ed] Mr. Neumann to rely on the representations

of the Benefits Guide . . . .” Such “[t]hreadbare recitals of the elements of a cause of action do not

suffice.” Iqbal, 556 U.S. at 678.9

         Van Loo v. Cajun Operating Company, does not save her claim. See Van Loo v. Cajun

Operating Co., 703 F. App’x 388, 394 (6th Cir. 2017). There the decedent elected a level of life


8
  NUFIC argues that Briggs cannot rely on case law addressing equitable estoppel claims because she did not claim
that her § 502(a)(3) claim was based on equitable estoppel. As NUFIC correctly points out, in Deschamps, the court
addressed detrimental reliance in the context of an equitable estoppel claim under § 502(a)(3), Deschamps, 840 F.3d
at 273–76, and Sprague addressed an estoppel claim without making any reference to a statutory provision, Sprague,
133 F.3d at 403–04. We have observed that equitable estoppel “has sometimes been considered a doctrine that can
apply in § 1132(a)(1)(B) actions to estop the plan from being enforced as written, sometimes a doctrine that can be
used in § 1132(a)(3) to gain similar relief, and sometimes as a free-floating common-law cause of action under
ERISA.” Julia v. Bridgestone/Firestone, Inc., 101 F. App’x 27, 31 (6th Cir. 2004) We also observe that
misrepresentation and justifiable reliance are elements shared by a § 502(a)(3) breach of fiduciary claim, see Moore,
458 F.3d at 433; a § 502(a)(3) equitable estoppel claim, Deschamps, 840 F.3d at 273–76; and a stand-alone common
law claim, see Sprague, 133 F.3d at 403. Similar to the Julia court, “we need not wade too deeply into this morass”
of case law, because like the Julia plaintiff, Briggs cannot show reasonable reliance, see Julia, 101 F. App’x at 31–
32, or a misrepresentation. See id. (declining to decide whether the plaintiff properly sought to recover benefits under
§ 502(a)(1)(B) and estop the defendant from its misrepresentations or sought equitable estoppel under § 502(a)(3)
because she could not show reasonable reliance on the misrepresentations). Thus, however classified, Briggs’s claim
that she is entitled to relief based on alleged misrepresentations in the Benefits Guide fails.
9
 Moreover, when the court revisited the reliance issue in its July 18, 2018 opinion (which had already been dismissed
anyway) it noted that Briggs had not offered any evidence of what was on Neumann’s mind when he purchased the
AD&D Policy.


                                                          -9-
No. 18-1828, Briggs v. National Union Fire Insurance, et al.


insurance benefits that required an evidence-of-insurability form as a precondition. The defendant

employer, who self-administered the plan, accepted the decedent’s insurance premiums for several

years, but never required her to submit the requisite form. We held that the decedent reasonably

relied on defendant’s misrepresentation that she qualified for the benefit and that she therefore

stated a claim for breach of fiduciary duty. Id. at 394–95. But here, as the district court observed,

given the Benefits Guide’s admonitions, Neumann could not reasonably infer that insurance

benefits would be payable in the event of any and every accident simply because he paid premiums.

       Equitable Reformation. Equitable reformation of the Plan is also not an option because the

complaint fails to allege any facts suggesting that that IPG and the Plan misled him into thinking

anything differently. See Pearce v. Chrysler Grp., LLC Pension Plan (Pearce II), 893 F.3d 339,

347–49 (6th Cir. 2018) (reformation under § 502(a)(3) requires a mistaken belief by one party

caused by fraud or inequitable conduct by the other party, with the latter element mirroring the

definition of fraud in equitable estoppel). See generally Iqbal, 556 U.S. at 678. Further, there are

no allegations of “fraud or inequity” by which IPG and the Plan gained an “undue and

unconscientious advantage” over Briggs. See Pearce, 893 F.3d at 348. IPG is not responsible for

paying benefits owed under the AD&D Policy, and the Policy is 100% funded through premium

payroll deductions. Briggs does not dispute that IPG remitted Neumann’s premiums to NUFIC.

For the same reasons, surcharge (monetary relief for a loss resulting from a trustee’s breach of

duty, or to prevent the trustee’s enrichment) is also not a proper remedy. See generally Amara,

563 U.S. at 442.

       Not Providing a Summary Plan Description. Briggs asserts that benefits should be

awarded because IPG and the Plan failed to provide Neumann with a summary plan description.

ERISA requires a plan administrator to furnish summary plan descriptions to employees to all



                                                -10-
No. 18-1828, Briggs v. National Union Fire Insurance, et al.


participants and beneficiaries of an ERISA plan. § 104(b), 29 U.S.C. § 1024(b). But, as we have

consistently held, such shortcomings are not a basis for a substantive remedy, i.e., an award of

benefits. See Sears v. Union. Cent. Life Ins. Co., 222 F. App’x 474, 479 (6th Cir. 2007); Del Rio

v. Toledo Edison Co., 130 F. App’x 746, 751 (6th Cir. 2005) (holding that “ERISA does not

provide a substantive remedy for the violation” of “ERISA-imposed disclosure requirements”);

Lewandowski v. Occidental Chem. Corp., 986 F.2d 1006, 1009 (6th Cir. 1993) (per curiam)

(“Nothing in § 1132 suggests that a plan beneficiary should receive a benefit award based on a

plan administrator’s failure to disclose required information.” Instead, recourse for disclosure

violations is limited to the statutory penalties found in ERISA’s civil enforcement provision. See

29 U.S.C. § 1132(c); Lewandowski, 986 F.2d at 1009 (recognizing that ERISA consciously limits

recovery for disclosure violations); Lampkins v. Golden, 104 F.3d 361, 1996 WL 729136, *3 (6th

Cir. 1996) (“The purpose of the statutory penalty is not to compensate participants, but to induce

administrators to expeditiously provide requested plan documents by punishing those who fail to

comply.”)

       Failing to “Police” NUFIC. Briggs’s related argument that IPG and the Plan breached a

fiduciary duty by “failing to ensure that NUFIC delivered a certificate of insurance to Mr.

Neumann,” also falters because (1) it has been forfeited because raised for the first time on appeal,

see United States v. Archibald, 589 F.3d 289, 295–96 (6th Cir. 2009); and (2) even if IPG and the

Plan had a duty to monitor this activity (which the complaint does not allege), such a disclosure

violation does not give rise to substantive relief. See Del Rio, 130 F. App’x at 751.

                                            B. NUFIC

       Briggs maintains that NUFIC is still on the hook for damages pursuant to § 502(a)(3)

because it never provided Neumann with a certificate of insurance. But NUFIC’s alleged failure



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No. 18-1828, Briggs v. National Union Fire Insurance, et al.


to provide Neumann with a copy of the Policy or insurance certificate10 is irrelevant to her denial

of benefits claims. See, e.g., Lewandowski, 986 F.2d at 1009. Furthermore, as noted, Briggs’s

assertion that NUFIC “induc[ed] Mr. Neumann to rely on the representations of the Benefits Guide

rather than seeking alternative coverage” consists of mere conclusory allegations, not facts to

support a plausible claim. See Iqbal, 556 U.S. 678–80. There are no facts establishing that

Neumann read the Benefits Guide, concluded that there were no exclusions in the AD&D Policy,

and then decided not to purchase alternative coverage. Furthermore, Briggs does not identify any

misrepresentations by NUFIC.                There are no facts suggesting that NUFIC helped draft or

disseminate the Benefits Guide—further attenuating Briggs’s inducement claim against NUFIC.

See Iqbal, 556 U.S. at 678. In fact, there are no allegations that NUFIC took any actions that could

support a plausible breach of fiduciary claim.11 Moreover, as discussed, no reasonable employee

could have believed that the Benefits Guide was the official plan.

           Briggs attempts to gain traction with the following argument: when the Benefits Guide and

the AD&D Policy have been in conflict, the parties’ “course of performance” is to conform to the

Benefits Guide, not the Plan. She “proves” her point by noting that during the administrative claim

and appeal process, when confronted with a conflict between the Benefits Guide, which expressly

included coverage for domestic partners, and the AD&D Policy, which did not, AIG resolved the

domestic partner discrepancy by retroactively adding a rider to the NUFIC Policy extending

coverage to domestic partners.                  This argument does not change the course of our reasoning.

First, NUFIC never denied the claims for either death based on the absence of a domestic partner


10
     ERISA does not require the delivery of a certificate of insurance.
11
   Briggs attempts to get around this pleading fatality by asserting that, during the claim and appeal process, “the AIG
representative spoke with Ms. Briggs . . . and Ms. Briggs indicated that her son would not have paid for coverage with
such an exclusion as he ‘often was flying this way.’” Setting aside the fact that this claim was dismissed under Rule
12(b)(6) and reliance on the administrative record is thus improper, this does not prove that Neumann relied on the
alleged nondisclosure of the exclusion when he decided not to seek alternative coverage.

                                                           -12-
No. 18-1828, Briggs v. National Union Fire Insurance, et al.


rider. Second, NUFIC’s decision to add a domestic partner coverage rider does not demonstrate

that the decision to deny coverage based on an unambiguous policy exclusion is arbitrary and

capricious, especially since there was no conflict between the Benefits Guide and the Policy.

Third, this was a singular decision, and therefore not within the definition of “course of

performance.” See COURSE OF PERFORMANCE, Black’s Law Dictionary (10th ed. 2014)

(“A sequence of previous performance by either party after an agreement has been entered into,

when a contract involves repeated occasions for performance . . . .”).

                                  C. Impermissible Repackaging

         Both the Interpublic Defendants and NUFIC continue to assert on appeal that Briggs’s

§ 502(a)(3) fiduciary duty claim must be dismissed as improper “repackaging” of her

§ 502(a)(1)(B) benefits claim. See Rochow, 780 F.3d 364; Wilkins v. Baptist Healthcare System

Incorporated, 150 F.3d 609, 615 (6th Cir. 1998). The district court noted that in this circuit “[t]here

is an open question of how equitable estoppel claims interact with the repackaging defense,” but

decided that it need not address the issue because it concluded that Briggs had failed to state a

claim under § 502(a)(3). Because we reach the same conclusion, it is also unnecessary for us to

address this argument.

                                        III. CONCLUSION

         As the district court held, Briggs is not entitled to benefits under § 502(a)(1)(B) or any

form of equitable relief under § 502 (a)(3). We therefore AFFIRM the judgment of the district

court.




                                                 -13-
