Charlene Edwards Honeywell, United States District Judge.
This cause comes before the Court upon Defendants' Motion to Dismiss Counts I and III of Plaintiff's Complaint (Doc. 19) and Plaintiff's response in opposition (Doc. 22). In the Motion, Defendants argue that Plaintiff's Complaint, brought pursuant to the Employee Retirement Income Security Act ("ERISA"), should proceed under Count II alone because the remaining counts seek relief that does not exist under the statute. The Court, having considered the parties' submissions and being fully advised in the premises, will grant in part Defendants' Motion to Dismiss.
Plaintiff Tyrone Keys ("Keys") played in the National Football League ("NFL") for seven seasons as a defensive lineman. Doc. 1 at ¶ 5. He played from 1983 until he had to retire in 1989 due to football injuries to his back, knees, and shoulder. Id. Shortly after his NFL career ended, Keys submitted a disability claim to Defendant, the Bert Bell/Pete Rozelle NFL Player Retirement Plan (the "Plan"), a multi-employer pension and welfare benefits plan. Id. at ¶ 2. Keys submitted the claim to the Plan administrators due to his significant football-induced impairments. Id. at ¶ 6.
At the time Keys submitted his initial disability claim, there were three relevant classifications of disability benefits: (i) Line of Duty Benefits, awarded to players who have a "substantial disablement" due to playing NFL football but who are considered not totally disabled; (ii) Football Degenerative Total and Permanent ("T&P") benefits awarded to players who are considered to be substantially prevented from engaging in any occupation, i.e. totally disabled, due to impairments caused by playing NFL football; and (iii) Inactive T&P Benefits, awarded to former NFL players who are found to be totally and permanently disabled but whose disability is considered to be unrelated to their NFL football careers. Id.
The claims administrators for the Plan include the Disability Initial Claims Committee (the "DICC"), an entity consisting of two people—one appointed by the NFL Players Association and one appointed by NFL management—and the Retirement Board (the "Board"), consisting of six people, three appointed by the NFL Players Association and three appointed by NFL management. Id. at ¶ 7. The DICC is the initial decision maker and the Board members are the plan fiduciaries who conduct the fiduciary review of a claim that has been denied. Id.
After examining Keys in December 1991, Dr. Unger reported the following NFL-related impairments to the Plan's administrators, predicting that the impairments would degenerate further with time:
Id. at ¶ 10. Dr. Unger also evaluated the degree of Keys' NFL-related impairments. Id. at ¶ 11. He reported that Keys had a 50 to 59 percent loss of use of his back as a result of playing in the NFL, a 30 to 49 percent loss of use of his shoulder as a result of playing in the NFL, and a 60 to 79 percent loss of use of both knees as a result of playing in the NFL. Id. In the additional remarks section of the report to the Board in 1991, Dr. Unger wrote as follows:
Id.
The Board awarded Keys Line of Duty benefits based upon Dr. Unger's findings and opinions. Id. at ¶ 12. Dr. Unger examined Keys annually at the Plan administrator's request up until 1999. Id. At each examination, Dr. Unger found the same degree of NFL-related impairments. Id.
Keys was paid Line of Duty benefits for the maximum period available of five years. Id. at ¶ 13. Prior to those benefits expiring on December 1, 1997, Keys requested that his benefits be reclassified as T&P Football Degenerative disability benefits. Id. at ¶ 14. That request was denied in 1997. Id.
On May 7, 2002, Keys was involved in a minor automobile accident. Id. at ¶ 15. His car was hit from behind while stopped at a red light. Id. The accident aggravated his pre-existing professional football injuries but had no effect on the permanent injuries he sustained playing NFL football. Id. In September 2003, Keys re-applied for Football Degenerative T&P disability benefits. Id. at ¶ 16. In his application, he listed his impairing conditions caused by playing NFL football. Id. He relied upon the opinions of his treating physicians, an independent medical examination, and his medical history in attributing the following impairments to his NFL football career:
Id.
Thereafter, the Plan's administrators sent Keys to one of their physician experts, Harold Selesnick, M.D. Id. at ¶ 17. After an extensive physical examination, Dr. Selesnick found that Keys was disabled due to NFL football injuries. Id. He wrote as follows:
Id.
After review of the application and the records that were submitted, on March 3, 2004, the Board awarded Keys Inactive T&P disability benefits, effective January 1, 2004. Id. at ¶ 18. Keys appealed through counsel, pointing out that all of the medical evidence indicated that he was totally and permanently disabled due to his NFL football career. Id.
After further review, and relying upon Dr. Selesnick's examination and report, the DICC approved Keys' claim for Football Degenerative T&P benefits at their meeting on April 7, 2004. Id. at ¶ 19. Football Degenerative T&P benefits were paid to Keys retroactive to January 1, 2004 and Keys repaid Inactive T&P benefits that he had received. Id.
The Plan requires continuing proof of total and permanent disability once a participant is awarded benefits. Id. at ¶ 20. Consequently, the Plan's administrators had their medical experts examine Keys multiple times. Id. Each time, their experts found that Keys was totally disabled by his NFL career. Id.
In April 2011, the DICC deadlocked (1 to 1)
In August 2011, the classification "Football Degenerative" T&P benefits was revised and those benefits were thereafter designated as "Inactive A" T&P benefits. Id. at ¶ 24. "Inactive B" T&P benefits replaced the prior classification of "Inactive" T&P benefits. Id. Keys received Inactive A T&P benefits in September, October, and November 2011 while his appeal was pending. Id.
In November 2011, the Board upheld the DICC's April 2011 termination of benefits decision. Id. at ¶ 25. The Board took the position that Keys' earnings stated in his 2009 tax return were incompatible with T&P disability benefits. Id. The Board further alleged it received no evidence that Keys had been approved for SS disability benefits. Id.
Keys reapplied for T&P disability benefits from the Plan in February 2012 and submitted the SS disability decision he had received by that time. Id. at ¶ 26. The DICC denied his claim by letter dated March 5, 2012, maintaining that articles and documents he submitted with his application indicated that he was still working. Id.
Keys appealed through counsel, pointing out that he performed limited charity work but did not have the capacity for full-time work due to his NFL-related impairments. Id. at ¶ 27. Key's tax returns were submitted with the appeal, showing that he was not engaged in any full-time employment. Id. At their meeting in November, 2012, the Board awarded Inactive B benefits to Keys, effective December 2011, based upon his re-application, his SS award, and his appeal. Id.
Keys appealed the Board's decision, pointing out that the classification was wrong and that he should have been awarded Inactive A benefits. Id. at ¶ 30. The Board denied his appeal at their meeting in May 2013, and Keys requested reconsideration. Id. After reconsideration, the Board awarded Inactive A benefits to Keys with an effective date of December 2013, subject to Keys providing additional information to the Plan administrators. Id. Specifically, Keys was asked to provide authorizations allowing the Plan administrators to obtain Keys' SS disability files and his federal tax returns, along with a list of any employment Keys had been engaged in after January 2004. Id. Keys was paid Inactive B benefits during this time period.
In February 2015, the Board terminated Keys' lnactive B benefits, alleging Keys failed to provide the requested information. Id. at ¶ 29. Counsel for Keys provided the information. Id. In July 2015, Keys' Inactive A benefits were reinstated retroactively to December 2013. Id.
Keys, through counsel, indicated that Inactive A benefits should have been retroactively awarded to December 2011, not December 2013. Id. at ¶ 30. Keys requested the difference between Inactive A benefits
In August 2017, the Plan administrators notified Keys that the Board decided to deny his claim for additional benefits for the time period December 1, 2011 through November 2013 and was also terminating his Inactive A benefits. Id. at ¶ 31. The Board had determined that Keys was never entitled to Inactive A benefits (formerly Football Degenerative T&P benefits), and as a result was overpaid by $831,488.28 (the difference between Inactive A and Inactive B for the time period between January 1, 2004 until August 1, 2017). Id. The Board notified Keys that he would no longer be paid any disability benefits and that his monthly Inactive B T&P benefits would be applied as they accrued to the outstanding indebtedness of $831,488.28 due the Plan as a result of the overpayment. Id.
The Board notified Keys that when the Plan administrators reviewed Keys' SS file, they acquired a complete copy of a medical report from August 1, 2003, from Chet Janecki, M.D., that indicated Keys had been in a car accident in May 2002. Id. at ¶ 32. The Board alleged for the first time that it had not received or acquired Janecki's full report before June 2016. Id.
The Board erroneously maintained that Keys' 2003 application for T&P Football Degenerative disability benefits was "intentionally and materially incomplete and inaccurate" because he did not provide the details of the 2002 car accident in his application. Id. Further, the Board notified Keys that the car accident, rather than playing seven years in the NFL, was the "proximate cause of the impairments underlying [Keys'] 2003 application" and, therefore, Keys was never entitled to Football Degenerative/Inactive A benefits. Id.
Keys appealed the Board's determination, arguing that the longstanding impairments listed in his 2003 application were the result of playing NFL football, as was made clear by a reasonable review of his medical records. Id. at ¶ 33. He pointed out that the car accident did not cause any of the NFL-related impairments he listed in his application, and that the ongoing award of benefits year after year by the Plan administrators, as well as the SS disability award, were based upon a significant volume of medical evidence that Keys remained totally and permanently disabled as a result of his NFL career. Id. He also pointed out that the DICC knew about the 2002 automobile accident prior to the award of Football Degenerative T&P benefits in 2004. Id.
The Board denied Keys' appeal by letter dated February 26, 2018. Id. at ¶ 34. Keys was advised that he had exhausted his administrative remedies and his only remaining alternative was to file suit under section 1132(a) of ERISA. Id. Keys has exhausted his administrative remedies as required. Id. at ¶ 35.
To survive a motion to dismiss, a pleading must include a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Labels, conclusions and formulaic recitations of the elements of a cause of action are not sufficient. Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Furthermore, mere naked assertions are not sufficient. Id. A complaint must contain sufficient factual matter, which, if accepted as true, would "state a claim to relief that
Keys sets forth three claims in his Complaint. Doc. 1. Count I seeks a declaration of rights under section 1132(a)(1)(B) of the Plan. Doc. 1 at ¶ 36. Count I asks the Court to declare that Defendants' decision that Keys owes the Plan due to overpayment and that Defendants have the right to offset the benefits that would otherwise be paid to Keys to reduce indebtedness was an abuse of discretion because Keys did not provide false information. Id.
Count II is a claim for benefits under section 1132(a)(1)(B). Id. at ¶ 37. In Count II, Keys alleges that Defendants' decision to deny him Inactive A benefits for the time period from December 2011 through November 2013 and to terminate his Inactive A benefits beginning August 2017 was an abuse of discretion. Id. Keys seeks Inactive A benefits in the sum of $144,000 ($6,000 per month for 24 months) spanning the time period from December 2011 through November 2013 when Keys was erroneously paid Inactive B benefits. Id. at ¶ 49. Keys also seeks Inactive A benefits from August 2017 to present at the rate of $9,000 per month. Id. at ¶ 50.
Count III sets forth a claim for "Estoppel Based Upon Silence Under [section] 1132(a)(1)(B)." Id. at ¶ 39. Count III asserts that Defendants previously had information about Keys' 2002 automobile accident in their possession but chose not to pursue any additional information until recently. Id. at ¶ 42. Under Count III, Keys seeks to retain the benefits previously paid to him, requesting that Defendants "be estopped from clawing back Inactive A ... benefits paid to Keys." Id. at ¶¶ 47, 51.
Defendants seek dismissal of Count I. Defendants contend that the relief Keys seeks—a declaration that he did not provide false information—does not exist under section 1132(a)(1)(B). Doc. 19 at p. 7. Defendants state: "Count I asks this Court to opine on the veracity of the documents that Keys submitted, and to his state of mind in submitting such documents. This type of declaratory relief is not available under section [1132](a)(1)(B)." Id.
Keys responds that nothing within ERISA requires that a claimant set forth just one claim where he has been affected by separate decisions of a plan administrator. Doc. 22 at p. 3. Keys states that Count I seeks an enforcement of his rights under the Plan, a permissible purpose of ERISA. Specifically, Keys "seeks to enforce his rights under the plan to retain all of the disability benefits he has received and to prevent the offset of his continuing disability benefits because he did not submit false information." Id. at p. 5. Keys further asserts that Count I is narrowly tailored to address the issue of Defendants' clawback of $831,488.28 in benefits based on a provision in the Plan that allows for the recovery of overpayments. Id. at pp. 4-5.
Under section 1132(a)(1)(B), a plan participant or beneficiary may bring a civil action "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." 29 U.S.C. § 1132(a)(1)(B). "[T]hree distinct remedies" are available to a participant or beneficiary
In Heffner, the Eleventh Circuit noted that although most ERISA cases seek orders requiring plans to provide "traditional benefit[s] such as covering a health care cost," cases which seek to remedy impositions that a plaintiff contends are contrary to their plan may be permissible actions "to enforce ... rights under the terms of the plan." Id. at 1338 (quoting 29 U.S.C. § 1132(a)(1)(B)).
Here, Keys' claim in Count I for declaratory judgment is a claim seeking to enforce his rights under a provision of the Plan. The cited plan provision,
Further, Keys' claim in Count I for declaratory relief is not subsumed by Count II, as Defendants argue. In Count II, Keys asks the Court, among other things, to determine that Defendants' decision to terminate Inactive A benefits beginning August 2017 was an abuse of discretion. Defendants' decision to terminate Inactive A benefits beginning August 2017 was based on a finding that Keys was never entitled to Inactive A benefits between 2004 to 2017. Doc. 1 at ¶ 31. A finding by the Court that this decision was an abuse of discretion may mean that Keys was entitled to Inactive A benefits between 2004 and 2017 and may further mean that Keys is owed benefits (and therefore would not owe Defendants). However, a finding that Defendants did not abuse their discretion in determining that Keys was never entitled to Inactive A benefits from 2004 to 2017 would mean that Keys is not owed benefits and may have been overpaid.
In the latter instance, the question of whether Keys owes under the Plan's overpayment provision based on the submission of false information would still be at issue. The application of the overpayment provision is therefore a potentially distinct issue and may be properly brought in a separate claim for declaratory relief. Therefore, Defendants' Motion will be denied with respect to Count I.
Defendants also seek dismissal of Count III. Defendants contend that the relief Keys seeks in this count—a claim for retention of benefits paid based on estoppel —also does not exist under section 1132(a)(1)(B) and is inadequately pleaded. Doc. 19 at p. 8. Defendants state that the Eleventh Circuit, in Jones v. Am. General Life and Acc. Ins. Co., 370 F.3d 1065, 1069 (11th Cir. 2004), recognized a claim for estoppel when terms of a plan subject to ERISA are ambiguous and a participant
Keys characterizes a claim for estoppel under Jones as a claim for "offensive" estoppel. Doc. 22 at p. 7. Keys contends that he does not attempt to state a claim for Jones estoppel; rather, he asserts a theory of "defensive equitable estoppel, based upon the claims administrator's thirteen year[s] of silence, which has unquestionably prejudiced Keys." Id. Keys contends that there is nothing within ERISA that indicates that this form of equitable estoppel may not be applied. Id. at p. 8.
"ERISA preemption has an `expansive sweep' and is not limited to state laws designed specifically to affect employee benefit plans." Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1355 (11th Cir. 1998) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987)). "State common law claims relating to employee benefit plans, such as equitable estoppel, are preempted by ERISA." Chiroff v. Life Ins. Co. of N. Am., 142 F.Supp.2d 1360, 1364 (S.D. Fla. 2000) (internal quotation marks omitted).
Despite Keys' contention that nothing within ERISA indicates that the law of equitable estoppel may not be applied under section 1132(a)(1)(B), he does not cite any cases where a federal court enforced a theory of equitable estoppel other than as provided by the "narrow" exception in Jones. Id. Instead, Keys directs the Court to Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 231-32, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959), a case under the Federal Employer's Liability Act ("FELA"), for analogy. In Glus, the Supreme Court determined that a claimant could properly argue equitable tolling of the statute of limitations where the claimant's employer told him that he had seven years to file suit despite the fact that FELA required three years. Id. In so holding, the Supreme Court stated that nothing in the language or history of FELA indicated that equitable tolling could not apply. Id. Keys argues that the same reasoning in FELA applies to this case.
As an initial matter, Keys' analogy to Glus appears inconsistent with his representation that his estoppel claim is not related to "a misrepresentation of plan terms." Doc. 22 at p. 6. In any event, whether the Supreme Court's reasoning in Glus would apply to this ERISA case is questionable given other binding precedent. In particular, the Eleventh Circuit has held that estoppel cannot be used to alter the statutory requirement that ERISA plans "be `established and maintained pursuant to a written instrument.'" Nachwalter v. Christie, 805 F.2d 956, 960 (11th Cir. 1986) (quoting 29 U.S.C. § 1102(a)(1)). Because of the statutory language, "oral representations cannot modify unambiguous terms of an employee benefit plan." Heffner, 443 F.3d 1330. Accord Wright v. Aetna Life Ins. Co., 110 F.3d 762, 764 (11th Cir. 1997) ("[O]ral communications cannot modify an unambiguous ERISA plan document since ERISA specifically requires that plans be `maintained' in writing.").
Notwithstanding the above, Keys cannot maintain his estoppel claim because he does not set forth the necessary elements. "Equitable estoppel consists of words or conduct which causes another person to believe a certain state of things exists, and to consequently change his or her position in an adverse way." Whetstone Candy Co. v. Kraft Foods, Inc., 351 F.3d 1067, 1076 (11th Cir. 2003) (internal
United States Life Ins. Co. in the City of New York v. Logus Mfg. Corp., 845 F.Supp.2d 1303, 1318 (S.D. Fla. 2012) (internal citations omitted).
A review of Count III shows that Keys does not allege that his reliance was intended or reasonably anticipated by Defendants. Keys claims that he was prejudiced by Defendants' years of silence because he was not able to have a "timely dialogue about the accident and its relationship to his condition." Doc. 1 at ¶ 46. But this concern appears to relate to Defendants' claim process and procedures rather than any common law theory of relief. Moreover, Keys does not explain what would have been different about the dialogue had he been notified by Defendants earlier.
It is unclear whether Keys may set forth a cognizable claim for equitable estoppel based upon silence under ERISA. Notwithstanding, Keys fails to set forth the required elements of a common law cause of action. Therefore, Defendants' Motion will be granted with respect to Count III.
Accordingly, it is hereby
