In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-1256

C YNTHIA L ARSON, et al.,
                                            Plaintiffs-Appellants,
                               v.

U NITED H EALTHCARE INSURANCE
C OMPANY, et al.,
                                           Defendants-Appellees.


           Appeal from the United States District Court
              for the Western District of Wisconsin.
           No. 11-cv-473-bbc—Barbara B. Crabb, Judge.



        A RGUED M AY 29, 2012—D ECIDED JULY 26, 2013




  Before W OOD , S YKES, and T INDER, Circuit Judges.
  S YKES, Circuit Judge. This proposed class action alleges
that six major health-insurance companies are violating
Wisconsin law by requiring copayments for chiropractic
care. The state insurance code prohibits health insurers
from excluding coverage for chiropractic services if
their policies cover the diagnosis and treatment of the
same condition by a physician or osteopath. See W IS. S TAT.
§ 632.87(3)(a). The insurance policies at issue here
provide this coverage, although like other healthcare
2                                             No. 12-1256

services, the chiropractic coverage is subject to copay-
ment requirements. The plaintiffs contend that section
632.87(3)(a) prohibits insurers from imposing any
copayments on chiropractic care because copays
in effect shift most or all of the cost of the care to
the insured.
  Because the plaintiffs are insured through employer-
based health plans, the complaint seeks relief under two
provisions of the Employee Retirement Income Security
Act (“ERISA”): § 502(a)(1)(B), for recovery of benefits
due, see 29 U.S.C. § 1132(a)(1)(B); and § 502(a)(3), for
breach of fiduciary duty, see 

1104. The
district court dismissed the complaint, holding that
insurance companies are not proper defendants on an
ERISA claim for benefits and the practice of requiring
chiropractic copays is not a fiduciary act.
  We affirm, although on somewhat different reasoning.
Many of our cases say that an ERISA claim to recover
benefits due under an employee-benefits plan normally
should be brought against the plan. That’s the general
rule, but nothing in ERISA categorically precludes a
benefits claim against an insurance company. Here, the
complaint alleges that the insurers decide all claims
questions and owe the benefits; on these allegations the
insurers are proper defendants on the § 1132(a)(1)(B)
claim. The complaint fails to state a claim for breach of
fiduciary duty, however. Setting policy terms, including
copayment requirements, determines the content of the
policy, and “decisions about the content of a plan are
not themselves fiduciary acts.” Pegram v. Herdrich, 

, 226 (2000).
No. 12-1256                                                   3

   Although the benefits claim was properly lodged
against the insurers, it fails on the merits. Section
632.87(3)(a) is unambiguous and does not prohibit
chiropractic copays. The plaintiffs argue in the alterna-
tive that the insurers impose unequal copayments in
violation of the statute. This claim is new on appeal and
is therefore waived.


                       I. Background
   The case comes to us from a dismissal for failure to
state a claim, see F ED. R. C IV. P. 12(b)(6), so we take the
facts from the complaint, accept them as true, and draw
reasonable inferences in favor of the plaintiffs. McReynolds
v. Merrill Lynch & Co., Inc., 

, 879 (7th Cir. 2012).
Cynthia Larson and the other named plaintiffs are
insured under employer-sponsored healthcare plans
underwritten by the six defendant insurance companies.1
The insurers determine all eligibility and benefits ques-
tions and pay the plaintiffs’ claims.
  The plaintiffs regularly undergo chiropractic treat-
ments, a common healthcare service that years ago was
not routinely covered in health-insurance policies.



1
  The named plaintiffs are Cynthia Larson, Kimberly Dehaan,
Jeannette Borden, Rebecca Bavinck, and Amy Cloute. The
defendants are United Healthcare Insurance Company, Wis-
consin Physicians Service Insurance Corporation, Humana
Insurance Company, Network Health Plan, Blue Cross
Blue Shield of Wisconsin, and Compcare Health Services
Insurance Corporation.
4                                                No. 12-1256

For more than 25 years, however, Wisconsin has required
health insurers operating within the state to cover
chiropractic care on an equal basis as other forms of
medical care for the same condition. More specifically,
in 1987 the Wisconsin legislature adopted a statute
banning insurance companies from excluding coverage
for chiropractic services if their policies covered
the treatment of the same condition by a physician or
osteopath:
      (a) No policy, plan or contract may exclude coverage
      for diagnosis and treatment of a condition or
      complaint by a licensed chiropractor within the
      scope of the chiropractor’s professional license, if
      the policy, plan or contract covers diagnosis and
      treatment of the condition or complaint by a
      licensed physician or osteopath . . . .
W IS. S TAT. § 632.87(3)(a). The statute continues as follows:
      This paragraph does not:
        1. Prohibit the application of deductibles or
      coinsurance provisions to chiropractic and physician
      charges on an equal basis.
        2. Prohibit the application of cost containment or
      quality assurance measures to chiropractic services
      in a manner that is consistent with cost containment
      or quality assurance measures generally applicable
      to physician services and that is consistent with
      this section.

                                                5

  The complaint alleges that although the insurers
provide chiropractic coverage in their policies, the cover-
age comes with strings attached—copayment require-
ments—and because chiropractic care is relatively inex-
pensive, the required copayments often approach or
exceed the cost of the treatment.2 The practice of
requiring copays, the complaint alleges, effectively shifts
all or most of the cost of chiropractic care to the patient.
The legal premise of the suit is that section 632.87(3)(a)
prohibits health insurers from including any chiropractic
copays in their policies.
  The complaint invokes two of ERISA’s remedial provi-
sions: § 1132(a)(1)(B), which gives participants and benefi-
ciaries a cause of action to recover benefits due under
the terms of an employee-benefits plan; and § 1132(a)(3),
which in tandem with § 1104 gives participants and
beneficiaries a cause of action for breach of fiduciary
duty. The plaintiffs seek multiple forms of relief: a declara-
tion that the practice of requiring chiropractic copay-
ments violates section 632.87(3)(a) and voiding all
copayment terms in the defendants’ policies; damages
for benefits due based on past illegal copayments paid;
and equitable relief in the form of “a surcharge
resulting from [d]efendants’ breach of fiduciary duty and
to prevent the [d]efendants’ unjust enrichment.”



2
  The policies have the following copayments for chiropractic
visits: $60 (United Healthcare); $60 (Wisconsin Physicians
Service); $50 (Humana); $30/$35 (Network Health Plan);
$50 (Blue Cross Blue Shield).
6                                               No. 12-1256

  The insurers separately moved to dismiss for failure
to state a claim, see F ED. R. C IV. P. 12(b)(6), together
waging a broad-spectrum attack on the complaint. The
defense motions had the following arguments in
common: (1) section 632.87(3)(a) does not prohibit the
practice of imposing copayments for chiropractic care;
(2) insurance companies are not proper defendants in
a benefits claim under § 1132(a)(1)(B); (3) the plaintiffs
may not use § 1132(a)(1)(B) as a vehicle for reforming
a plan or policy to comply with state law; (4) setting
copayment requirements is not a fiduciary act; (5) if the
conduct was fiduciary in nature, then charging copay-
ments was prudent and breached no fiduciary duty; (6) the
claims are barred by Wisconsin’s “voluntary payment”
doctrine; and (7) the plaintiffs failed to exhaust
their administrative remedies.
  The district court sensibly began with the second and
fourth arguments, which address whether plan partici-
pants and beneficiaries can sue their insurance
companies at all under § 1132(a)(1)(B) and § 1132(a)(3).
The judge agreed with the insurers on both points. Re-
garding the claim for benefits due, the judge noted a
long line of cases from this court holding that an
ERISA claim for benefits due under an employee-
benefit plan ordinarily should be brought against the
plan. See, e.g., Feinberg v. RM Acquisition, LLC, 

, 673 (7th Cir. 2011); Leister v. Dovetail, Inc., 

, 879 (7th Cir. 2008); Mote v. Aetna Life Ins. Co.,

, 610-11 (7th Cir. 2007); Blickenstaff v. R.R.
Donnelley & Sons Co. Short Term Disability Plan,

, 674 (7th Cir. 2004); Jass v. Prudential Health
No. 12-1256                                                    7

Care Plan, Inc., 

, 1490 (7th Cir. 1996). Relying on
this authority, the judge held that the plaintiffs cannot
sue the health insurers under § 1132(a)(1)(B). Regarding
the claim for breach of fiduciary duty, the judge held
that the insurers were not acting as fiduciaries when
they set their policy terms, including the chiropractic
copay requirements. These rulings disposed of the
entire case, so the judge dismissed the complaint
without addressing the defendants’ alternative argu-
ments. This appeal followed.


                        II. Discussion
   ERISA “provides ‘a panoply of remedial devices’ for
participants and beneficiaries of [employer-provided]
benefit plans.” Firestone Tire & Rubber Co. v. Bruch, 

, 108 (1989) (quoting Mass. Mut. Life Ins. Co. v. Russell,

, 146 (1985)). This case focuses on two:
the cause of action to recover and clarify plan benefits, see
29 U.S.C. § 1132(a)(1)(B), and the cause of action for
breach of fiduciary duty, see 

(establishing
the cause of action) & § 1104 (describing the content and
scope of fiduciary duty). Although the plaintiffs seek
multiple forms of relief—a declaration of rights, damages
in the form of overpaid copays, and equitable re-
lief—their complaint is structured around these two causes
of action. Because the court dismissed the complaint
for failure to state a claim, see F ED. R. C IV. P. 12(b)(6), our
8                                                  No. 12-1256

review is de novo, 

.3


A. Section 1132(a)(1)(B) Claim for Benefits Due
   Among other remedies, ERISA’s civil-enforcement
section provides that “[a] civil action may be brought . . .
by a participant or beneficiary . . . 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) (also known as ERISA § 502(a)(1)(B)).
The district court held that the insurance companies
could not be sued under § 1132(a)(1)(B), relying on a
principle running through our caselaw that a claim for
benefits due under an employee-benefits plan ordinarily
should be brought against the plan itself. See, e.g., 

(“The proper defendant in a suit for
benefits under an ERISA plan is . . . normally the plan
itself . . . .”); 

(same); 

(same); 

(The Ҥ 502(a)(1)(B) claim for benefits . . . generally is
limited to a suit against the Plan, not an employer . . . or
the claims evaluator . . . .”).
  This is indeed the general rule. “The benefits are an
obligation of the plan, so the plan is the logical and nor-
mally the only proper defendant” in a claim for benefits



3
 The district court properly addressed the Rule 12(b)(6)
motions ahead of class certification. See McReynolds v.
Merrill Lynch & Co, Inc., 

, 879 n.4 (7th Cir. 2012).
No. 12-1256                                                    9

due under § 1132(a)(1)(B). 

. The
qualifier “normally” is important, however. In many
cases the plan will be the right (and only proper)
defendant when a participant or beneficiary seeks
benefits owed under the terms of the plan. But it does not
follow from this general rule that an ERISA claim for
benefits may never be brought against an insurer.


  1.   Remedial scope       of   a    benefits   claim    under
       § 1132(a)(1)(B)
   An ERISA § 502(a)(1)(B) claim is “essentially a contract
remedy under the terms of the plan.” Ponsetti v. GE
Pension Plan, 

, 695 (7th Cir. 2010); see also Jones
v. Am. Gen. Life & Accident Ins. Co., 

, 1069 (11th
Cir. 2004); Burstein v. Ret. Account Plan for Emps. of Alle-
gheny Health Educ. & Research Found., 

, 381 (3d
Cir. 2003) (“Claims for ERISA plan benefits under
ERISA § 502(a)(1)(B) are contractual in nature.”); Estate of
Bratton v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 

, 523 (5th Cir. 2000). The Supreme Court has
explained that the remedy provided in § 1132(a)(1)(B) is
designed “to protect contractually defined benefits,”

, and in keeping with its contract-law
foundations, the cause of action offers typical contract
forms of relief, including recovery of benefits accrued or
otherwise due, declaratory judgments to clarify plan
benefits, and injunctions against future denial of
benefits, 

The claim is governed by a federal
common law of contract keyed to the policies codified in
ERISA. Mathews v. Sears Pension Plan, 

, 465
10                                                No. 12-1256

(7th Cir. 1998) (“[T]he relevant principles of contract
interpretation are not those of any particular state’s
contract law, but rather are a body of federal common
law tailored to the policies of ERISA.”).
  The insurance companies argue that the phrase
“benefits due . . . under the terms of the plan” means
only those benefits specifically listed in plan documents
and not benefits guaranteed under state law such as
section 632.87(3). See generally Kennedy v. Plan Admin. for
DuPont Sav. & Invest. Plan, 

, 300-04 (2009)
(explaining the “plan documents rule,” under which
plan administrators are required to follow plan docu-
ments). The district court sidestepped this argument,
having concluded that the insurance companies cannot
be sued at all under § 1132(a)(1)(B). We cannot bypass
the point; it’s a necessary predicate to our conclusion
that the insurance companies are proper defendants
on the plaintiffs’ benefits claim.
  An ERISA “plan” is an unwritten “scheme” or “set of
rules” regarding the provision of employee benefits.

(“Rules governing collection of
premiums, definition of benefits, submission of claims,
and resolution of disagreements over entitlement to
services are the sorts of provisions that constitute a plan.”).
Once the plan is conceived, it must be “established
and maintained pursuant to a written instrument” and
“provide for one or more named fiduciaries who jointly
or severally shall have authority to control and manage
the operation and administration of the plan.” 29 U.S.C.
§ 1102(a)(1).
No. 12-1256                                                 11

   With insurance-based plans, however, “confusion is
all too common in ERISA land; often the terms of an
ERISA plan must be inferred from a series of documents[,]
none clearly labeled as ‘the plan.’ ” Health Cost Controls
of Ill., Inc. v. Washington, 

, 712 (7th Cir. 1999);
see also Admin. Comm. of Wal–Mart Stores, Inc. v. Gamboa,

, 542 (8th Cir. 2007) (“[I]dentifying ‘the plan’
is not always a clear-cut task.”). We sometimes equate
the ERISA “plan” with the insurance policy. See, e.g.,
Raybourne v. Cigna Life Ins. Co. of N.Y., 

, 448
(7th Cir. 2009) (describing an insurance policy as “the
original plan”). More commonly, however, we refer to
an insurance policy as a “plan document” that implements
the plan. See, e.g., Ruiz v. Cont’l Cas. Co., 

, 991
(7th Cir. 2005); Health Cost 

.
  The Supreme Court has held that when an ERISA
plan includes an insurance policy, the requirements
imposed by state insurance law become plan terms for
purposes of a claim for benefits under § 1132(a)(1)(B).
See UNUM Life Ins. Co. of Am. v. Ward, 

,
375-76 (1999). In Ward the defendant insurer argued—just
as the insurers do here—that only a written plan term
can be enforced under § 1132(a)(1)(B). 

The
Supreme Court disagreed, relying on its ERISA preemp-
tion caselaw holding that “state laws mandating
insurance contract terms are saved from preemption
under § 1144(b)(2)(A).” 

Life Ins. Co. v.
Massachusetts, 

, 758 (1985)). Section
1144(b)(2)(A) is an exception to ERISA’s general preemp-
tion rule and provides that “nothing in this subchapter
shall be construed to exempt or relieve any person from
12                                              No. 12-1256

any law of any State which regulates insurance.” The
Court flatly rejected the insurer’s position, commenting
that it “overlooks controlling [preemption] precedent
and makes scant sense” and would leave the states
“powerless to alter the terms of the insurance relation-
ship in ERISA plans.” 

Under the insurance
company’s view of things, “insurers could displace
any state regulation simply by inserting a contrary term
in plan documents.” 

That result, the Court
said, “would virtually ‘rea[d] the saving clause out of
ERISA.’ ” 

original) (quoting Metro. 

).
  To be sure, ERISA fiduciaries must act “in accordance
with the documents and instruments governing the
plan.” 29 U.S.C. § 1104(a)(1)(D). Moreover, nothing in
§ 1132(a)(1)(B) gives a court “the power to change the
terms of the plan.” CIGNA Corp. v. Amara, 

, 1876 (2011). But the Court explained in Amara that
it will sometimes be necessary to “look outside the
plan’s written language in deciding what those terms
are, i.e., what the language means.” 

As an
example the Court cited Ward, which “permitt[ed] the
insurance terms of an ERISA-governed plan to be inter-
preted in light of state insurance rules.” 

526 U.S. at 377-79).
  Accordingly, when an employee-benefits plan includes
an insurance policy, contract terms mandated by state
insurance law become plan terms. See 

. In effect, a plan administrator applying state
insurance-law requirements “must be said to enforce
No. 12-1256                                             13

plan documents, not ignore them.” 

. Accordingly, Wisconsin’s equal-coverage mandate
for chiropractic care, section 632.87(3), is a plan term
and may be enforced in a claim under § 1132(a)(1)(B).


 2. Who may be sued under § 1132(a)(1)(B)?
  But may the plaintiffs bring their claim against the
insurance companies, or is ERISA’s benefits remedy
limited to suits against the plan? We return to the
statutory text, which creates a cause of action for “a
participant or beneficiary” 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). The statute plainly spells out who may
bring this claim—a plan “participant” or “benefi-
ciary”—but it does not specify who may be sued. Nor
does it limit “the universe of possible defendants”;
indeed, it “makes no mention at all of which parties may
be proper defendants.” Harris Trust & Sav. Bank v. Salomon
Smith Barney Inc., 

, 246 (2000) (addressing
the related question of who may be sued under
§ 1132(a)(3)).
  By necessary implication, however, a cause of action
for “benefits due” must be brought against the party
having the obligation to pay. In other words, the obligor
is the proper defendant on an ERISA claim to recover
plan benefits. See 

(“The proper
defendant in a suit for benefits under an ERISA plan is, in
any event, normally the plan itself . . . because the plan
14                                                No. 12-1256

is the obligor.”). Typically the plan owes the benefits
and is the right defendant. See 

.
But not always. Health plans are often structured
around third-party payors. When an employee-benefits
plan is implemented by insurance and the insurance
company decides contractual eligibility and benefits
questions and pays the claims, an action against the
insurer for benefits due “is precisely the civil action
authorized by § 1132(a)(1)(B).” Cyr v. Reliance Standard
Life Ins. Co., 

, 1207 (9th Cir. 2011) (en banc).
   This conclusion fits with the common-law contract
principles that guide the interpretation of § 1132(a)(1)(B).
“Under settled principles of federal common law, a
third party may have enforceable rights under a contract
if the contract was made for his direct benefit.” Holbrook
v. Pitt, 

, 1270 (7th Cir. 1981). Here, the plain-
tiffs allege that they are insured under healthcare
policies issued by the insurance companies under
employee-benefits plans sponsored by their employers.
They further allege that the insurers have both the author-
ity to decide all eligibility and benefits questions and
the obligation to pay the claims. Accepting these allega-
tions as true, as we must at this juncture, the § 1132(a)(1)(B)
claim rests on contract obligations running directly
from the insurers to the plaintiffs. The insurance compa-
nies are the obligors and may be sued under ERISA
for benefits due the plaintiffs.
  It might be argued that suing an insurance company
under § 1132(a)(1)(B) conflicts with a separate provi-
sion in ERISA’s civil-enforcement scheme that makes
No. 12-1256                                              15

employee-benefit plans amenable to suit and limits the
liability of plan administrators. Section 1132(d) provides
as follows:
     (1) An employee benefit plan may sue or be sued
    under this subchapter as an entity. . . .
      (2) Any money judgment under this subchapter
    against an employee benefit plan shall be enforceable
    only against the plan as an entity and shall not be
    enforceable against any other person unless liability
    against such person is established in his individual
    capacity under this subchapter.
29 U.S.C. § 1132(d). In Leister we observed that “[t]he
first clause [of this subsection] just allows plans to sue
or be sued, and the second clause just specifies conse-
quences if the plan is sued; neither seems to be limiting
the class of defendants who may be 

. The main point of § 1132(d) is to adjust certain
common-law liability rules; it’s one example of the way
in which ERISA departs from the common law of trusts.
  The Supreme Court has recognized that much of
ERISA is modeled on trust law (its fiduciary rules in
particular), and common-law trust principles guide its
interpretation. See Firestone 

. But the
Court has also cautioned that “[i]n some instances, trust
law will offer only a starting point, after which courts
must go on to ask whether, or to what extent, the
language of the statute, its structure, or its purposes
require departing from common-law trust requirements.”
Varity Corp. v. Howe, 

, 497 (1996). Section
16                                                   No. 12-1256

1132(d) contains two important deviations from the
common law of trusts.
   At common law a trust cannot sue or be sued because
it “is not a juristic person.” See Lazenby v. Codman, 

, 609 (2d Cir. 1940). ERISA departs from this rule
by expressly providing in § 1132(d)(1) that “[a]n
employee benefit plan may sue and be sued . . . as an
entity.” Another common-law rule is that “a trustee is
personally liable on any contract made by the trustee,
even if the trustee acted properly.” R ESTATEMENT (T HIRD )
                                       4
OF T RUSTS ch. 21, intro. note (2007). The modern trend
in trust law is to insulate trustees from personal liability
except for specific kinds of improper acts, 

adopts this modern view by providing that a money
judgment against a plan “shall be enforceable only
against the plan as an entity” and not against any other
person “unless liability against such person is estab-
lished in his individual capacity,” 29 U.S.C. § 1132(d)(2).
  By making the plan amenable to suit and limiting the
personal liability of plan administrators, § 1132(d) over-
rides the common law of trusts and channels ERISA
benefits claims into suits against the plan. But § 1132(d)
does not categorically preclude suits against an in-
surance company or other obligor for benefits due. To
the contrary, “[t]he ‘unless’ clause [in § 1132(d)(2)] neces-



4
   At common law a faultless trustee could be indemnified from
the trust estate, but he was still jointly liable in his individual
capacity for any money judgments against the trust estate.
R ESTATEMENT (T HIRD ) OF T RUSTS ch. 21, intro. note (2007).
No. 12-1256                                              17

sarily indicates that parties other than plans can be
sued for money damages under other provisions of
ERISA, such as § 1132(a)(1)(B), as long as that party’s
individual liability is established.” 

.
  We have on occasion allowed benefits claims to
proceed against nonplan defendants based on uncer-
tainties about the structure of the plan. In Leister, for
example, we held that where “the plan has never been
unambiguously identified as a distinct entity, . . . the
plaintiff [may] name as defendant whatever entity or
entities, individual or corporate, control the 

; see also Mein v. Carus Corp., 

,
588 (7th Cir. 2001); Riordan v. Commonwealth Edison Co., 

(7th Cir. 1997). Uncertainty isn’t an issue here;
the complaint clearly alleges that the insurers have
both the discretion to decide eligibility and benefits
questions and the obligation to pay claims.
  Of course a plaintiff may lack a valid legal theory to
proceed against a nonplan defendant on a benefits
claim. For example, we have affirmed the dismissal of a
claim for benefits brought against an employee of the
plan administrator. See 

. Because the
employee was sued in her individual capacity, we
said she was “the wrong defendant,” explaining that
§ 1132(d)(2) blocked the suit against an agent of the
plan administrator absent some basis for liability in her
individual capacity. 

none, so we held that
the complaint against the employee was properly dis-
missed. 

Feinberg we affirmed the dismissal of an ERISA
benefits claim against the successor of the original plan
18                                             No. 12-1256

. The successor company had
purchased the assets of the plaintiff’s former employer,
which had sponsored his retirement plan. But the
successor company had not assumed its predecessor’s
liabilities, including its retirement-plan obligations. The
retiree (and other retirees in the same boat) sued the
successor company but had no basis for holding the
successor liable for the benefits, so we affirmed the dis-
missal of the claim—not because it was brought against
the “wrong defendant,” see 

the plaintiff
had “no practical alternative to suing” the successor),
but because the successor had no obligation to pay
the benefits, 

  Before concluding on this point, we acknowledge
that our decision in 

, appears to
suggest a general rule against suing insurance
companies under § 1132(a)(1)(B). A close reading of
the case, however, clarifies that Mote cannot be read so
broadly. There, the plaintiff sued her employer-
based disability plan and the plan’s administrator, the
Aetna Life Insurance Company. 

The district
court dismissed Aetna as an improper defendant and
entered summary judgment in favor of the plan,
rejecting the plaintiff’s claim on the merits. We affirmed
the merits judgment, but we also said that the district
court had correctly dismissed the insurer as an
improper defendant, relying on the general rule that “in
a suit for ERISA benefits, the plaintiff is ‘limited to a
suit against the Plan.’ ” 

(quoting 

). We saw no reason in Mote to depart
from this general rule because the lines between the
No. 12-1256                                              19

employer, the plan, and the insurer/administrator were
not fuzzy: “Aetna was not Mote’s employer and the
Plan’s policy distinguishes between the Plan, the
employer, and Aetna.” 

But we did not address
whether the disputed benefits in Mote were obligations
of the plan itself (paid out of plan assets) or obligations
of the insurance company (paid out of its assets). And
because we affirmed the entry of summary judgment
for the plan on the merits, the dismissal of the insurer
made no real difference to the bottom line. Mote should
be understood as an uncontroversial application of the
general rule that an ERISA claim for benefits normally
should be brought against the plan; we do not read it as
support for a rule against suing insurance companies
under § 1132(a)(1)(B).
  To sum up, nothing in ERISA categorically precludes
a suit against an insurance company for benefits due
under § 1132(a)(1)(B). Although a claim for benefits
ordinarily should be brought against the plan (because
the plan normally owes the benefits), where the plaintiff
alleges that she is a participant or beneficiary under an
insurance-based ERISA plan and the insurance company
decides all eligibility questions and owes the benefits,
the insurer is a proper defendant in a suit for benefits
due under § 1132(a)(1)(B). Our conclusion accords
with that of the en banc Ninth Circuit, which has ad-
dressed this specific question, see 

,
as well as the general approach adopted by other
circuits in benefits claims against nonplan defendants,
see Lifecare Mgmt. Servs. LLC v. Ins. Mgmt. Adm’rs Inc., 

, 843-45 (5th Cir. 2013) (collecting cases). It is
20                                              No. 12-1256

also consistent with the Supreme Court’s conclusion in
Harris Trust that nonplan defendants are subject to suit
under § 1132(a)(3). 

; see also 

(“We see no reason to read a limitation into
§ 1132(a)(1)(B) that the Supreme Court did not perceive
in § 1132(a)(3).”).


B. Section 1132(a)(3) Claim for Breach of Fiduciary Duty
  The district court also dismissed the claim under
§ 1132(a)(3) for breach of fiduciary duty because the
conduct alleged in the complaint—imposing copayment
requirements for chiropractic services—is not fiduciary
in nature. This ruling was sound. “In every case
charging breach of ERISA fiduciary duty, . . . the threshold
question is . . . whether [the defendant] was acting as
a fiduciary (that is, was performing a fiduciary func-
tion) when taking the action subject to complaint.” 

.
  ERISA carefully defines fiduciary status. “[N]ot only
the persons named as fiduciaries by a benefit plan, see
29 U.S.C. § 1102(a), but also anyone else who exercises
discretionary control or authority over the plan’s man-
agement, administration, or assets, see 

is
an ERISA ‘fiduciary.’ ” Mertens v. Hewitt Assocs., 

, 251 (1993). More specifically, “a person is a fiduciary
with respect to a plan to the extent . . . he exercises any
discretionary authority or discretionary control
respecting management of such plan or exercises any
authority or control respecting management or disposi-
tion of its assets.” 29 U.S.C. § 1002(21)(A). ERISA
No. 12-1256                                               21

thus “defines ‘fiduciary’ not in terms of formal trustee-
ship, but in functional terms of control and authority
over the plan, see 

the universe of
persons subject to fiduciary duties,” 

.
   The Supreme Court has also explained that “a benefit
determination is part and parcel of the ordinary
fiduciary responsibilities connected to the administra-
tion of a plan.” Aetna Health Inc. v. Davila, 

,
219 (2004). Therefore “the ultimate decisionmaker in a
plan regarding an award of benefits” is a fiduciary and
acts as a fiduciary “when determining a participant’s or
beneficiary’s claim.” 

see also CSA 401(K) Plan v.
Pension Prof’ls, Inc., 

, 1140 (9th Cir. 1999)
(fiduciary responsibilities include “the active interpreta-
tion of employee benefit plans, the management and
disbursement of fund assets, the approval and rejection
of claims, and the rendering of ultimate decisions re-
garding benefits eligibility”); Blue Cross & Blue Shield of
Ala. v. Sanders, 

, 1352 n.4 (11th Cir. 1998)
(“Claims administrators are fiduciaries if they have
the authority to make ultimate decisions regarding
benefits eligibility.”); Libbey-Owens-Ford Co. v. Blue Cross
& Blue Shield Mut. of Ohio, 

, 1032 (6th Cir.
1993) (claims administrator was fiduciary because it
“retained authority to resolve all disputes regarding
coverage”).
  Applying these principles, we have held that an insur-
ance company is a fiduciary under ERISA when it
“agreed to exercise authority over the plan and was
22                                              No. 12-1256

granted the same discretionary authority as the original
plan administrator.” Semien v. Life Ins. Co. of N. Am.,

, 811-12 (7th Cir. 2006). When an insurer
makes eligibility and benefits determinations under an
ERISA plan, “it is plainly wearing its fiduciary hat, and
the beneficiary may challenge the correctness of the
decision according to the terms of the ERISA plan.” Cotton
v. Mass. Mut. Life Ins. Co., 

, 1291 (11th Cir.
2005). Here, the complaint alleges that each insurance
company “administer[s] claims,” “ma[kes] all benefit and
policy decisions,” and “pa[ys] all benefits” under the
health plans sponsored by the plaintiffs’ employers.
  At the same time, however, ERISA’s functional defini-
tion of “fiduciary” also means that an ERISA fiduciary
does not always “wear the fiduciary hat.” 

. ERISA “does not describe fiduciaries simply
as administrators of the plan, or managers or advisers.
Instead it defines an administrator, for example, as a
fiduciary only ‘to the extent’ that he acts in such a
capacity in relation to a plan.” 

(quoting
29 U.S.C. § 1002(21)(A)). Accordingly, the threshold
inquiry in an ERISA claim for breach of fiduciary duty
also requires the court to determine whether the
defendant was “performing a fiduciary function[] when
taking the action subject to complaint.” 

   The complaint’s key factual allegations on this claim
are as follows: (1) “each [d]efendant . . . issued policies
requiring illegal copayments for chiropractic services and
never exercised its authority, control, or responsibility to
eliminate these illegal copayments”; (2) “[d]efendants knew,
No. 12-1256                                                23

or should have known, that . . . their failure to exercise
their discretionary authority, control, and responsibility
to eliminate illegal copayments for chiropractic care[] would
reduce [p]laintiffs’ and Class members’ use of
chiropractic care”; and (3) “[d]efendants also knew, or
should have known, that . . . their failure to exercise their
authority, control, or responsibility to eliminate copayments
for chiropractic care[] would result in direct financial bene-
fits to them at the expense of the [p]laintiffs and the
Class.” (Emphases added.)
   Cutting through the surplusage, it’s clear that these
allegations do not attack the discretionary aspects of
claims administration as such; the plaintiffs are not chal-
lenging individual eligibility and benefits determina-
tions. Instead, the complaint targets decisionmaking
about policy terms. The alleged fiduciary breach is the
issuance of policies that require “illegal copayments
for chiropractic care” and the failure to “eliminate” the
illegal policy provisions. In short, this is a challenge to
the content of the insurance policies; “decisions about the
content of a plan are not themselves fiduciary acts.”

. The fiduciary-duty claim fails
at the threshold.


C. Alternative Grounds for Affirmance
  Our conclusion that the insurance companies are
proper defendants on the benefits claim brings up the
insurers’ many alternative arguments to affirm, all of
which were raised in the district court and are fully
briefed here. See Bogie v. Rosenberg, 

, 614 n.2
24                                              No. 12-1256

(7th Cir. 2013) (We may “affirm on any ground that the
record supports and that appellee has not waived.”
(internal quotation marks omitted)). We address only
one because it is dispositive. Section 632.87(3)(a) does
not prohibit chiropractic copayments.
   Recall that the state statute provides that no
insurance “policy, plan or contract may exclude coverage
for diagnosis and treatment of a condition or complaint
by a licensed chiropractor . . . if the policy, plan or
contract covers diagnosis and treatment of the condition
or complaint by a licensed physician or osteopath.” W IS.
S TAT. § 632.87(3)(a) (emphasis added). This language
is clear. If an insurance policy covers treatment by a
licensed physician or osteopath for a particular
condition or complaint, then it cannot exclude treatment
for the same condition or complaint by a licensed chiro-
practor acting within the scope of his license. The
statute requires equal treatment of chiropractic services;
it does not mandate a particular amount or level of cover-
age. More to the point, it does not expressly prohibit
chiropractic copayments. The Wisconsin insurance code
makes it clear that prohibitions do not arise by implication:
“[W]hat chs. 600 to 655 do not prohibit is permitted
unless contrary to other provisions of the law of this
state.” 

The plaintiffs have not
identified any other provision of Wisconsin law prohibiting
copayment requirements on chiropractic coverage.
  The plaintiffs insist that chiropractic copayments are
prohibited by negative implication from the language in
section 632.87(3)(a) expressly stating that deductibles
No. 12-1256                                              25

and coinsurance are not prohibited. See 

(“This paragraph does not . . . [p]rohibit the application
of deductibles or coinsurance provisions to chiropractic
and physician charges on an equal basis.”). That is, the
failure to mention copayments in this part of the statute
means that copayments are prohibited by omission. This
interpretation is foreclosed by the statutory rule against
implied prohibitions: “[W]hat . . . [is] not prohibit[ed]
is permitted . . . . ” 

  The parties engage in extended debate about other
evidence of statutory meaning. In particular, they
disagree about the role of a separate statute regulating
chiropractors, see 

(permitting chiro-
practors to “waive all or a portion of an insured’s
patient’s copayments, coinsurance, or deductibles”); an
administrative rule, see W IS. A DMIN. C ODE INS. § 8.77
(permitting health plans sold to small employers to
impose an $11 copayment for chiropractic services); and
certain agency directives in the form of “Fact Sheets”
issued by the Office of the Commissioner of Insurance.
We do not need to enter this debate. The statutory lan-
guage is not ambiguous. Nothing in section 632.87(3)(a)
prohibits chiropractic copayments.
  In the alternative the plaintiffs argue that if the
statute merely requires insurers to cover chiropractic
treatments on equal terms as other healthcare services,
then the complaint should be construed as stating a
valid claim that the insurance companies are actually
charging unequal copays for chiropractic care. This argu-
ment is new on appeal and is not supported by the al-
26                                                 No. 12-1256

legations in the complaint, which are confined to the
claim that Wisconsin law prohibits all chiropractic
copayments. As we have explained, that claim fails as a
legal matter. The alternative argument about unequal
copays was raised for the first time on appeal and there-
fore comes too late. See LaBella Winnetka, Inc. v. Village of
Winnetka, 

, 943 (7th Cir. 2010) (arguments
raised for the first time on appeal are waived); Fednav
Int’l Ltd. v. Cont’l Ins. Co., 

, 841 (7th Cir. 2010)
(“A liberal reading of [the] complaint and argument in
the district court yields no signs of the[] arguments
[the plaintiff] is now presenting.”).
                                                    A FFIRMED.




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