               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0417n.06


                                     Nos. 10-5154; 5155

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

PAUL MCKAY,                                                                     FILED

       Plaintiff-Appellant Cross-Appellee,                                 Jun 27, 2011
                                                                     LEONARD GREEN, Clerk
v.

RELIANCE STANDARD LIFE
INSURANCE COMPANY,
                                                          ON APPEAL FROM THE
       Defendant-Appellee Cross-Appellant,                UNITED STATES DISTRICT
                                                          COURT FOR THE EASTERN
UNUMPROVIDENT CORPORATION;                                DISTRICT OF TENNESSEE
UNUM LIFE INSURANCE COMPANY
OF AMERICA,

      Defendants-Appellees.
__________________________________________/

BEFORE: SUHRHEINRICH, MOORE and COOK; Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Suffering from severe cervical and lumbar disc disease,

Plaintiff-Appellant Paul McKay (“McKay”) sought Long Term Disability (“LTD”) benefits. He filed

consecutive claims with Defendants-Appellees, Unumprovident Corporation and Unum Life

Insurance Company (“Unum”), and Defendant-Appellee, Reliance Standard Life Insurance Company

(“Reliance”). Both denied his claims. The question on appeal is whether Unum and Reliance acted

arbitrarily or capriciously in denying McKay LTD benefits. The district court held that neither

decision was arbitrary or capricious. For the following reasons, we AFFIRM.



                                              1
       In addition, Reliance cross-appealed, alleging that the district court abused its discretion by

awarding McKay attorney fees following a remand of his claim against Reliance. For the reasons

stated, we AFFIRM the district court’s award of attorney fees.

                                       I. BACKGROUND

       U.S. Xpress Enterprises, Inc. (“U.S. Xpress”) employed Paul McKay as legal counsel from

September 1999 until January 19, 2004, when it terminated him. During his employment, McKay

developed significant cervical spine problems. He underwent surgery in June 2003. Unfortunately,

the surgery did not permanently resolve McKay’s condition. McKay attempted to work from

September through December 2003, but his pain worsened, and his work was increasingly affected.

He was frequently absent from work and his medication made mental concentration more difficult.

In mid-December 2003, McKay also came down with influenza. Although McKay states that the

last day he attempted to work at the office was December 19, McKay did go to the office on

December 31. Thereafter, he did not return to the office.

       In January 2004, after his flu improved, he wanted to return to the office, but could not go

back because his “back pain and neck pain had become so bad.” Though McKay intended to work

from home, it is unclear whether he actually worked from January 1, 2004, until January 19, 2004,

when U.S. Xpress terminated him.1

       U.S. XPress provides LTD benefits to its employees. Prior to January 1, 2004, these benefits

were provided by Unum. On January 1, 2004, Reliance replaced Unum as the benefit provider.

Reliance provided two policies to U.S. Xpress: a “basic” policy, which required an employee to elect

coverage and pay his own premiums, and an “executive” policy, under which no election was


       1
           McKay received full pay through January 16, 2004.

                                                 2
necessary and U.S. XPress paid the premiums.2 Both policies include a Transfer Of Insurance

Coverage section which provides coverage to certain, previously covered employees.

       On June 15, 2005, McKay submitted a LTD claim to Unum. Unum replied with a letter,

dated October 13, 2005, denying McKay benefits. Unum explained that McKay had not sustained

the 20% reduction in indexed monthly earnings required for eligibility under its policy, because he

continued to receive full compensation from U.S. Xpress through January 16, 2004. McKay pursued

an administrative appeal through Unum and its claims administrator again denied benefits. The

denial letter emphasized that Unum was not disputing McKay’s claimed medical concerns, but that,

per the terms of the policy, more was required before he was eligible for LTD benefits. Specifically,

he had not experienced the specified 20% or more financial loss.

       In August 2005, McKay filed for social security benefits. The Social Security Administration

found him “disabled” as of December 17, 2003 and awarded him disability.

       In March 2006, McKay filed a LTD claim with Reliance. Reliance considered McKay’s

claim under the basic policy and denied him coverage on the basis that he had not paid premiums

or elected coverage. McKay pursued an administrative appeal through Reliance.

       In December 2006, McKay filed a complaint in federal court against Unum and Reliance

alleging a denial of LTD benefits in violation of § 502 of the Employee Retirement Income Security

Act (“ERISA”), 29 U.S.C. § 1132.

       In September 2007, the district court concluded that Unum had not unreasonably denied

McKay relief. The court determined that McKay did not qualify for LTD benefits under Unum’s



       2
        These descriptions, adopted from the district court memorandum, are used for convenience,
and not to define the policies.

                                                 3
policy because he had not sustained a loss in earnings while Unum’s policy was in effect. On the

other hand, the court remanded the case against Reliance because it improperly denied McKay

coverage when it failed to clarify with U.S. Xpress which coverage provisions applied to McKay,

amounting to a failure to investigate that was unreasonable and arbitrary.

       In October 2007, McKay filed a motion seeking attorney fees from Reliance pursuant to 29

U.S.C. § 1132(g)(1). A magistrate judge issued a Report and Recommendation (“R&R”) and

recommended an award. Although the district court considered Reliance’s opposition to the

magistrate’s conclusions, the court accepted and adopted the R&R.

       In June 2008, Reliance again denied McKay benefits under its policy. After reviewing

McKay’s claim under the executive policy, Reliance determined that he was not “Actively at Work”

pursuant to the policy and, additionally, his claimed date of disability predated the Reliance policy’s

effective date. In response to McKay’s motion to reopen the case, the district court reinstated his

case against Reliance.

       In July 2009, Reliance moved for judgment on the administrative record. McKay followed

with a similar motion. The district court concluded that Reliance’s determinations, specifically that

McKay was not “Actively at Work” and that his disability predated the policy, were rational and

supported by the record. Accordingly, it upheld Reliance’s decision to deny McKay benefits.

       This appeal followed.3

                                           II. ANALYSIS

                                      A. Standards of Review



       3
       Not until the district court issued a final decision with respect to McKay’s claims against
both Unum and Reliance was an appeal appropriate pursuant to 28 U.S.C. § 1291.

                                                  4
        Judicial review of an ERISA benefit denial is based solely on the administrative record

available to the benefit plan administrator at the time of the decision. Wilkins v. Baptist Healthcare

System, Inc., 150 F.3d 609, 619 (6th Cir. 1998). The review is de novo unless the plan administrator

has “discretionary authority to determine eligibility for benefits or to construe the terms of the plan.”

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). When the administrator acts with

discretion, the reviewing court applies the highly deferential arbitrary or capricious standard of

review. Haus v. Bechtel Jacobs Co., 491 F.3d 557, 561 (6th Cir. 2007). It is undisputed that the

Unum and Reliance policies required discretionary decision making, so we must apply the arbitrary

or capricious standard.

        This standard “is the least demanding form of judicial review of administrative actions”; thus,

“[w]hen it is possible to offer a reasoned explanation, based on the evidence, for a particular

outcome, that outcome is not arbitrary or capricious.” Killian v. Healthsource Provident Adm’rs,

Inc., 152 F.3d 514, 520 (6th Cir. 1998) (quoting Perry v. United Food & Commercial Workers Dist.

Unions 405 & 442, 64 F.3d 238, 241 (6th Cir. 1995) (internal quotation marks omitted)). The

decision must “be upheld if it is the result of a deliberate principled reasoning process, and if it is

supported by substantial evidence.” Id. (quoting Baker v. United Mine Workers of Am. Health &

Retirement Funds, 929 F.2d 1140, 1144 (6th Cir. 1991)). In other words, if the decision is rational

in light of the policy’s provisions, the decision should stand. Yeager v. Reliance Standard Life Ins.

Co., 88 F.3d 376, 381 (6th Cir. 1996) (citations and quotation marks omitted); see also Conkright

v. Frommert, – U.S. —, 130 S.Ct. 1640, 1646 (2010) (explaining that a plan’s interpretation will not

be disturbed if reasonable). This is true, even if the plaintiff offers an equally rational interpretation.




                                                     5
Morgan v. SKF USA, Inc., 385 F.3d 989, 992 (6th Cir. 2004) (citing Ross v. Pension Plan for Hourly

Employees of SKF Indus., Inc., 847 F.2d 329, 334 (6th Cir. 1988)).

       Nevertheless, despite the deferential nature of the review, the inquiry “is not a rubber stamp

of the administrator’s decision.” Kovach v. Zurich Am. Ins. Co., 587 F.3d 323, 328 (6th Cir. 2010)

(internal citations and quotation marks omitted); see also McDonald v. W.-S. Life Ins. Co., 347 F.3d

161, 172 (6th Cir. 2003) (describing this review as “not . . . without some teeth”) (internal citations

omitted). In addition, if the benefit provider is both the decision-maker and the payor of the claims,

as both Unum and Reliance are, the reviewing court should take into account a potential conflict of

interest. Calvert v. Firstar Fin., Inc., 409 F.3d 286, 292-93 (6th Cir. 2005).

                                          B. LTD Claims

       McKay argues that because U.S. Xpress maintained uninterrupted LTD insurance coverage

during the time period in which he sustained his disability, he must be covered by one of the two

policies. McKay’s argument, while somewhat logical, is incorrect. Whether he is covered by either

Unum or Reliance, or both, turns on the terms of each policy. As the district court aptly pointed out:

“[McKay] misses the point. The real issue is whether either the Unum or the Reliance policy,

whichever one is determined to have been in effect at the time of Plaintiff’s disability, actually

covers [his] claims.”

       1. Unum

       McKay maintains he is eligible for LTD benefits from Unum. He claims that because he was

unable to work in January 2004, his salary did not amount to earnings and as a result, he suffered the

loss required under the Unum policy.




                                                  6
       Our analysis begins with the policy language. As stated supra, the Unum policy defines Long

Term Disability as follows:

       You are disabled when Unum determines that:
              -you are limited from performing the material and substantial duties
              of your regular occupation due to your sickness or injury; and

               -you have a 20% or more loss in your indexed monthly earnings due to the same
               sickness or injury.

The policy defines several of the incorporated terms. “Indexed monthly earnings” is defined as the

employee’s “monthly earnings adjusted on each anniversary of benefit payments by the lesser of 10%

or the current annual percentage increase in the Consumer Price Index.” The policy also defines

“monthly earnings” as “your gross monthly income from your Employer as defined in the plan.”

Income is not defined explicitly in the plan and so this court may look to its ordinary meaning. See

Kovach, 587 F.3d at 332 (explaining that ERISA plan language should be interpreted in such a way

that adheres “to the plain meaning of its language as it would be construed by an ordinary person”).

Income is “the money or other gain received, esp. in a given period, by an individual, corporation,

etc. For labor or services or from property, investments, operations, etc.” Webster’s New World

Dictionary, Third College Edition 683 (1988). The legal definition is similar: “[t]he money or other

form of payment that one receives, usu. periodically, from employment, business, investments,

royalties, gifts, and the like.” Black’s Law Dictionary (9th ed. 2009).

       Unum’s review of McKay’s benefit claim determined that U.S. Xpress continued to pay

McKay his full salary until January 16, 2004:

       [U.S. Xpress] confirmed verbally and with payroll documentation that [McKay]
       continued to be paid full regular salary through the month of December 2003 and
       through January 16, 2004. We confirmed that this pay was not sick pay or salary



                                                 7
       continuation but rather it was regular salary for services within the scope of
       [McKay’s] occupation.

McKay does not dispute that he received his full salary into January of 2004. Consequently, his

income, and, thus, his monthly earnings as defined by the Unum policy, did not decrease at all, much

less decrease by the requisite 20% or more. McKay does not meet the financial prong of Unum’s

disability coverage. Unum’s conclusion is reasonable based on the record, and, therefore, its

decision to deny McKay LTD benefits was not arbitrary or capricious.

       McKay frames his eligibility as turning on whether he actually earned his salary. In support

of this position, McKay relies heavily on Hansen v. Metro. Life Ins. Co., 192 F. App’x 319 (6th Cir.

2006). In Hansen, this court considered a plan that allowed for disability benefits when a claimant

was “unable to earn more than 80% of [her] Predisability Earning . . . at [her] Own Occupation for

any employer in [the] Local Economy.” Id. at 321. Thus, the question before the court was:

               whether MetLife acted arbitrarily and capriciously in concluding that
               Hansen ‘earn[ed]’ her salary during this period, as the plan required,
               [] rather than receiving payment for some other reason, such as
               vacation or sick-leave pay, or mere charity.

Id. The court found that there was considerable evidence that the claimant was working full-time

up until the point of her termination: her employer confirmed she was working, she informed her

physical therapist she was working full-time, and records indicated she “logged in over forty hours

per week, for the eight weeks she worked at home, including the days immediately preceding the

termination.” Id. at 321-22 (internal citations and quotation marks omitted). The court concluded

that the benefit provider’s denial of disability coverage was reasonable, because the claimant

continued to earn 100% of her salary. Id. at 323.




                                                 8
       McKay argues that the Hansen court’s focus on the claimant’s ability to work and earn his

or her salary controls here. He then contrasts his own circumstances with the Hansen claimant,

arguing that because he was not accomplishing much during December and January he cannot be

found to have been earning his salary. McKay’s argument is misplaced. Eligibility depends on the

language of the policy. See id. at 323 (“In ERISA cases, ‘disability’ is not a term of art but one that

varies from plan to plan.” (citing Calvert, 409 F.3d at 294 n.4)). Unum’s policy clearly does not turn

on whether McKay earned his salary, but on whether he sustained a loss.4 The administrative record

indicates he did not.5 Unum’s decision to deny him benefits was rational based on this record.

Because this decision is not arbitrary or capricious, we must uphold it.

       2. Reliance

       McKay asserts that because Unum denied him coverage, he must fall within the provisions

of the Reliance policy. He also argues that he satisfies the policy terms, which require that he be

“Actively at Work” or that his “Total Disability” began after the effective date of the policy.

       Reliance’s policy includes a Transfer Of Insurance Coverage provision, which allows

employees to avoid the standard 60-day waiting period for coverage. It provides:

       If an employee was covered under any group long term disability insurance plan
       maintained by [U.S. XPress] prior to this Policy’s Effective Date, that employee will
       be insured under this Policy, provided that he/she is Actively At Work and meets all
       of the requirements for being an Eligible Person under this Policy on its Effective
       Date.


       4
         Even if Unum’s policy turned on whether McKay earned his salary, McKay admitted in a
reply brief below, dated August 8, 2007, to earning his pay for December 31, 2003, the final day of
Unum’s policy. Accordingly, January 1, 2004, would be the first day McKay did not earn his salary
and Unum was no longer the benefit provider.
       5
        McKay’s other case citations similarly fail to support an argument that he sustained the loss
specified in the Unum policy.

                                                  9
          If an employee was covered under the prior group long term disability insurance plan
          maintained by you prior to this Policy’s Effective Date, but was not Actively at Work
          due to Injury or Sickness on the Effective Date of this Policy and would otherwise
          qualify as an Eligible Person, coverage will be allowed under the following
          conditions:

                           (1) The employee must have been insured with the
                           prior carrier on the date of the transfer; and
                           (2) Premiums must be paid; and
                           (3) Total Disability must begin on or after this
                           Policy’s Effective Date.

The policy defines “Actively at Work” as:

          actually performing on a Full-time basis the material duties pertaining to his/her job
          in the place where and the manner in which the job is normally performed. This
          includes approved time off such as vacation, jury duty and funeral leave, but does not
          include time off as a result of an Injury or Sickness.

“Full-time” is “working for [U.S. XPress] for a minimum of 33 hours during a person’s regular work

week.” “Total Disability” means “that as a result of an Injury or Sickness . . . an Insured cannot

perform the material duties of his/her regular occupation.”

                    a. Actively At Work

          Reliance’s post-remand, administrative review concluded that McKay was not Actively at

Work within the meaning of its policy.6 Reliance looked to McKay’s own sworn statement, in which

he explained that:

          As best I can recall, the last day I went into the office to try to work was on about
          Friday, December 19, 2003. About that time I came down with the flu, and did not
          go back to work after that. I may have stopped by the office on December 30 or 31,
          but am not sure about that.




          6
              Upon remand, Reliance’s administrative record incorporated the Unum administrative
record.

                                                   10
Reliance concluded that this “firmly establishes that [McKay] could not have been ‘Actively at

Work’ as defined by the policy on January 1, 2004.” Specifically, the statement served as a basis

for Reliance to conclude that McKay was not performing his “job in the place where and the manner

in which the job is normally performed.” Additionally, to the extent that he was not working on

account of influenza, Reliance pointed out that this would not excuse his failure to meet the Actively

at Work requirement. Finally, Reliance determined that “merely stopping by the office a day or two

before [Reliance’s] policy effective date hardly constitutes a regular pattern of working ‘a minimum

of thirty-three hours per week.’” Reliance noted further that the fact that U.S. XPress continued to

pay McKay his salary even though he was not working in the office offered “little convincing

evidence” that he met the policy requirements of being Actively at Work.

       McKay fails to demonstrate that he was Actively at Work, i.e., working “in the place where

. . . the job is normally performed” “for a minimum of 33 hours [a] work week.” It is undisputed that

McKay did not return to the U.S. XPress office, the place where his job is normally performed, after

December 31, 2003. Although McKay argues that he had permission to work from home, he cites

no authority that permission from his employer is sufficient to override the plain requirements of the

policy that he perform his job in the normal location.7

       Even assuming that permission to work from home somehow satisfies the location

requirement, McKay fails to establish that he worked 33 hours a week. He offers nothing to show

that he met this requirement and the record suggests that he did not. See, e.g., Letter from Lisa Pate,

U.S. XPress Vice President, to Eric Buchanan, Counsel for Paul McKay (Sept. 5, 2006) (“Although


       7
         Of the cases McKay cites for the proposition that he was Actively at Work, only Bingham’s
Estate v. Nationwide Life Ins. Co. of Columbus, Ohio, 638 P.2d 352 (Kan. Ct. App. 1981), includes
a location requirement in the policy and that provision was not in dispute nor addressed by the court.

                                                  11
I have no evidence that Paul was not working [while claiming to work from home in December

2003, and January 2004,], I also have no evidence that Paul was working during this time period.”).

In fact, McKay’s own statements before the district court and this court on appeal indicate his

“performance was increasingly ineffective,” that he “appeared to accomplish very little” and “was

getting very little done,” and further, that he “was not actually earning the salary paid to him during

his last weeks of employment with U.S. XPress.”

       McKay stresses that he received his full salary in January. He argues that if the work he

performed in January 2004 rendered his pay ‘earned’ for purposes of the Unum policy, it should also

render him Actively at Work under the Reliance policy. He extends this argument by asserting that

because he was a salaried employee he must decide for himself how many hours to devote to a task.

As this argument appears to admit, the fact that McKay drew a salary does not conclusively establish

that he worked any specific number of hours, especially given the other indications in the record that

he was not working Full-time. See Turner v. Safeco Life Ins. Co., 17 F.3d 141 (6th Cir. 1994)

(declining to conclude that a claimant, who was not working for a company in the active sense,

satisfied the 30-hour a week requirement even though he remained on the payroll).

       Based on the record, Reliance made a reasonable decision that McKay was not Actively at

Work within the meaning of its policy; we must let this decision stand.

               b. Total Disability Began Before The Effective Date Of The Reliance Policy

       Although McKay was not Actively at Work under the Reliance policy, he would be eligible

for LTD benefits if he qualified under the policy’s three-prong exception, which allows for coverage

of employees insured on the date of the transfer, whose premiums had been paid, and whose Total

Disability began on or after the effective date of Reliance’s policy. Reliance considered McKay’s


                                                  12
claim under this exception and concluded that McKay was ineligible for the Transfer Of Insurance

Coverage provision because his Total Disability began before the policy’s effective date. In support

of this conclusion, Reliance noted that the Social Security disability determination established a

disability date in December 2003, that McKay himself asserted a 2003 disability date in his

application for benefits under the Unum policy, and that the last day McKay went to the office “to

try to work” was in mid-December 2003.

       Even though the Social Security definition of disability differs from Reliance’s, this court

has said that a Social Security disability determination “is relevant in an action to determine the

arbitrariness” of an ERISA action. Glenn v. Metlife, 461 F.3d 660, 667 (6th Cir. 2006) (considering

a decision to terminate LTD benefits). To the same end, it is undisputed that McKay attempted to

claim benefits from Unum by establishing a disability date prior to January 1, 2004. It is also

undisputed that McKay did not attend work during the effective period of the Reliance policy.

       McKay argues that he was not disabled until January because he continued to draw a salary

and again cites Hansen in support; he asserts that if he earned his salary so as to make him ineligible

under the Unum policy, he could not have been disabled until he stopped earning his salary, which

would have been in January 2004. As discussed previously, Unum’s denial of McKay was not based

on whether he “earned” his salary; it was based on whether he suffered a specified financial loss

prior to the expiration of the Unum policy. Moreover, McKay’s own statements before the district

court and on appeal contravene the notion that he “earned” his salary in January. Yet, even if he had

earned his salary and that were enough to support a January disability date, McKay’s construction

of the policy terms is not enough to defeat the reasonable, albeit different, conclusion drawn by

Reliance. Morgan, 385 F.3d at 992.


                                                  13
        Based on the evidence in the administrative record, Reliance made a reasonable

determination that McKay’s disability predated its policy. Accordingly, this decision is not arbitrary

and we may not reverse it.

                                           C. Attorney Fees

        Following the district court’s remand for Reliance to consider McKay’s claim, McKay moved

for an award of attorney fees. The district court adopted the R&R and awarded attorney fees to

McKay. Reliance now cross-appeals and asserts that the award was in error.8 This court reviews

the district court’s decision to award attorney fees in an ERISA action for an abuse of discretion.

Gaeth v. Hartford Life Ins. Co., 538 F.3d 524, 528 (6th Cir. 2008).

        In an ERISA action by a plan participant to recover benefits, “the court in its discretion may

allow a reasonable attorney’s fee . . . to either party.” 29 U.S.C. § 1132(g)(1). This Circuit requires

the awarding court to consider five factors as a part of its analysis in awarding fees:

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

Gaeth, 538 F.3d at 529 (quoting Moon v. Unum Provident Corp., 461 F.3d 639, 642 (6th Cir. 2006)).

No single factor is determinative. Id. Additionally, the party receiving the award need not be the

“prevailing party”; rather, the “court in its discretion may award fees and costs to either party, as long

as the fee claimant has achieved some degree of success on the merits.” Hardt v. Reliance Standard



        8
         McKay asserts that Reliance waived any argument that the fees were in error because it
failed to assert that the remand order itself was in error. Reliance clearly opposed remand. As a
result, no waiver occurred.

                                                   14
Life Insurance Co., – U.S. —, 130 S.Ct. 2149, 2152 (2010) (internal citations and quotation marks

omitted).

       The district court considered each of the five factors. It found that Reliance’s failure to

conduct a “full and fair investigation” into McKay’s claims, including its failure to consider the

correct policy, amounted to arbitrary and capricious conduct that rose to the level of culpability

required for a fee award; accordingly, factor one weighed heavily in McKay’s favor. All parties

conceded and the court agreed that Reliance had the ability to pay; thus, factor two weighed in

McKay’s favor. Factor three similarly weighed in McKay’s favor as the district court found that

there was a deterrent effect for plan administrators to avoid failing to provide the necessary full and

fair review. McKay, Reliance, and the court agreed that the interest pursued by McKay was a private

one, and, thus, the fourth factor favored Reliance. The fifth factor on the other hand, favored

McKay; the court concluded that McKay had overcome the highly deferential arbitrary or capricious

standard to achieve a remand and that further, because Reliance had failed to fully develop the record

necessary for a full and fair review, McKay had the better position. Based on this analysis, the

district court concluded that the scale tipped heavily in McKay’s favor and, thus, an award of fees

under § 1132(g)(1) was reasonable.

       Similarly, the district court found that, even though the final merits of McKay’s claim had

not yet been resolved, he was “not a ‘loser’ in any sense; even if he ultimately is ineligible for

benefits, he has still seen success on the merits because his case was remanded for further

consideration.”

       The district court outlined the applicable law and provided a thorough explanation of its

conclusion that an award was appropriate. No abuse of discretion occurred here. See Gaeth, 538


                                                  15
F.3d at 528-29 (noting that “[a]n abuse of discretion exists only when the court has the definite and

firm conviction that the district court made a clear error of judgment in its conclusion upon weighing

relevant factors.” (citation omitted)).

        Reliance argues in vain that the Supreme Court’s decision in Hardt supports its position.

Reliance is correct that the Court in Hardt did not give unlimited authority to courts to award fees

under § 1132(g)(1). Hardt, 130 S.Ct. at 2158 (reminding readers that a “judge’s discretion is not

unlimited.” (citation omitted)). Instead, it found that § 1132(g)(1) requires a claimant to show “ome

degree of success on the merits,” and not merely a “trivial success on the merits” or a “purely

procedural victory.” Id. (citations and quotation marks omitted). Here, the district court explicitly

concluded that McKay’s receipt of “another shot” at his claimed benefits was a “success on the

merits because his case was remanded for further consideration”; in other words, McKay “achieved

some degree of success” by achieving a remand. Indeed, McKay was just like the Hardt claimant

in that he “persuaded the District Court to find that the plan administrator . . . failed to comply with

the ERISA guidelines” and that, as a result, he “did not get the kind of review to which [he] was

entitled under the applicable law.” Hardt, 130 S.Ct. at 2159 (internal citation and quotation marks

omitted). Reliance’s reliance on Hardt is misplaced; Hardt supports McKay’s position.

                                          III. CONCLUSION

        Pursuant to the terms of each policy, both Unum and Reliance made reasonable

determinations that McKay was not entitled to LTD benefits. Because they did not act arbitrarily

or capriciously, we AFFIRM the benefit denials. In addition, because the district court did not abuse

its discretion when it awarded attorney fees to McKay, we AFFIRM the award.




                                                  16
