FILED
                                                      United States Court of Appeals
                                                              Tenth Circuit

                                                           February 27, 2013
                                     PUBLISH              Elisabeth A. Shumaker
                                                              Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 JOSE CARDOZA,

             Plaintiff - Appellee,
       v.                                           No. 12-2033
 UNITED OF OMAHA LIFE
 INSURANCE COMPANY,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                 (D.C. NO. 1:09-CV-01003-MV-WPL)


Steven T. Collis, Holland & Hart, LLP, Greenwood Village, Colorado (Michael S.
Beaver, Holland & Hart, LLP, Greenwood Village, Colorado, and Marcy G.
Glenn, Holland & Hart, LLP, Denver, Colorado, with him on the briefs), for
Defendant-Appellant.

David L. Duhigg, Duhigg, Cronin, Spring & Berlin, P.C., Albuquerque, New
Mexico, for Plaintiff-Appellee.


Before KELLY, MURPHY, and GORSUCH, Circuit Judges.


MURPHY, Circuit Judge.
I.    Introduction

      Jose Cardoza brought this lawsuit pursuant to the Employee Retirement

Income Security Act of 1974, 29 U.S.C. § 1001 to § 1461 (“ERISA”), challenging

United of Omaha Life Insurance Company’s (“United of Omaha”) calculation of

his long-term disability benefits (“LTD benefits”). United of Omaha answered,

asserting its calculation was appropriate, and counterclaimed, demanding that

Cardoza reimburse it for payments of short-term disability benefits (“STD

benefits”) which it claimed were miscalculated. On cross-motions, the district

court granted Cardoza’s motion for summary judgment and denied United of

Omaha’s motion, concluding United of Omaha’s decision to calculate Cardoza’s

LTD benefits and recalculate his STD benefits as it did was arbitrary and

capricious.

      The district court erred in granting Cardoza’s motion for summary

judgment with respect to United of Omaha’s LTD benefits calculation. The plain

language of the long-term disability benefits policy (“LTD policy”) instructed

United of Omaha to base its calculation of Cardoza’s LTD benefits on his

earnings as verified by the premium it received. Thus, United of Omaha’s

decision to do so was reasonable and made in good faith. The district court did

not err, however, in granting Cardoza’s motion for summary judgment with

respect to United of Omaha’s recalculation of his STD benefits and demand for

reimbursement. The plain language of the short-term disability benefits policy

                                       -2-
(“STD policy”) instructed United of Omaha to base its calculation of Cardoza’s

STD benefits on his earnings. Thus, United of Omaha’s decision to recalculate

Cardoza’s STD benefits based on his earnings verified by premium rather than his

actual earnings was not reasonable. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, this court therefore reverses in part, affirms in part, and remands to the

district court with instructions to conduct further proceedings consistent with this

opinion.

II.   Background

      Cardoza worked as a truck driver for Durango-McKinley Paper Company

(“Durango-McKinley”) until July 2008, when he was involved in an accident and

became disabled. Durango-McKinley provided disability insurance to its

employees, including Cardoza, through United of Omaha under an ERISA plan.

Cardoza initially applied for and received STD benefits for a twelve-week period

from July to September 2008. Under the STD policy, Cardoza’s STD benefits

were calculated using his “Weekly Earnings”:

            Weekly Earnings means Your average gross weekly earnings
      received from the Policyholder [Durango-McKinley] during the
      Calendar Year immediately prior to the year in which Your Disability
      began . . . .

             It includes commissions, and overtime pay received from the
      Policyholder. It also includes employee contributions to deferred
      compensation plans. It does not include Policyholder contributions
      to deferred compensation plans, bonuses, shift differential, or other
      extra compensation received from the Policyholder.


                                         -3-
      Cardoza’s weekly earnings and, therefore, his STD benefits, were

calculated using his actual 2007 earnings of $61,881.47. United of Omaha

received this earnings information from Durango-McKinley in July 2008, during

the STD claims process.

      Cardoza then applied for LTD benefits, which were also approved. Per the

LTD policy, Cardoza’s LTD benefits were calculated using his “Basic Monthly

Earnings”:

             Basic Monthly Earnings means Your average gross monthly
      earnings received from the Policyholder [Durango-McKinley] and
      verified by premium We have received during the Calendar Year
      immediately prior to the year in which Your Disability began . . .

             It includes commissions, and overtime pay received from the
      Policyholder. It also includes employee contributions to deferred
      compensation plans. It does not include Policyholder contributions to
      deferred compensation plans, bonuses, shift differential, or other
      extra compensation received from the Policyholder.

      United of Omaha based its calculation of Cardoza’s basic monthly earnings

and, therefore, his LTD benefits, not on his actual earnings in 2007, but on an

annual earnings figure of $24,273.60. United of Omaha asserted

Durango-McKinley reported and paid premiums on this annual earnings figure in

2007. United of Omaha also asserted that Durango-McKinley had classified

Cardoza as an hourly employee whose annual earnings were less than $40,000, for

purposes of both the LTD and STD policies. Both policies provide that the

premium payable for each period of coverage is the sum of the individual


                                         -4-
premiums for each insured person and that individual premiums are based on an

insured person’s classification when a period of coverage begins.

      Cardoza objected to United of Omaha’s LTD benefits calculation and

provided proof of his actual earnings in 2007. The bulk of Cardoza’s 2007

income derived from “per ton” or “per load” earnings (“tonnage pay”)—earnings

he received based on the weight of the loads carried in his truck. The $24,273.60

earnings figure relied on by United of Omaha in calculating Cardoza’s LTD

benefits award did not include all of Cardoza’s tonnage pay.

      United of Omaha refused to adjust the LTD benefits calculation. It

reiterated its position that the LTD benefits calculation was properly based on the

earnings figure of $24,273.60 that Durango-McKinley had reported and on which

it paid premiums in 2007. United of Omaha also asserted that Cardoza’s tonnage

pay was considered “extra compensation” under the LTD policy and, therefore,

excluded from the LTD benefits calculation. In addition, United of Omaha

notified Cardoza that it had mistakenly calculated his STD benefits for the same

reasons. Thus, United of Omaha requested that Cardoza reimburse it for the

alleged overpayment of STD benefits. Cardoza refused.

      Cardoza unsuccessfully appealed United of Omaha’s LTD benefits decision

using United of Omaha’s appeals process. After exhausting his administrative

remedies, Cardoza filed suit against United of Omaha, challenging its calculation

of his LTD benefits and seeking attorney’s fees and costs. United of Omaha

                                        -5-
answered and counterclaimed, arguing it properly calculated Cardoza’s LTD

benefits and Cardoza owed it for overpayments of STD benefits.

       Following limited discovery, United of Omaha moved for judgment on the

administrative record and Cardoza moved for summary judgment. The district

court granted Cardoza’s motion and denied United of Omaha’s motion,

concluding United of Omaha’s decision to treat Cardoza’s tonnage pay as “extra

compensation,” and, therefore, exclude it from the LTD and STD benefits

calculations was arbitrary and capricious. United of Omaha then filed a motion to

alter or amend the judgment, arguing the maximum monthly benefit provision in

the LTD policy applicable to employees making less than $40,000 annually

should be applied to Cardoza, and thereby limit his LTD benefits. The district

court denied that motion. Finally, the district court granted Cardoza’s motion for

attorney’s fees and costs. United of Omaha appeals each of these decisions,

arguing its decision to calculate Cardoza’s LTD and STD benefits using the 2007

earnings and classification information Durango-McKinley reported and paid

premiums on was reasonable and made in good faith.

III.   Analysis

       A.    STD and LTD Benefits Calculations

       1. Standard of Review

       This court reviews summary judgment orders de novo, applying the same

standards as the district court. LaAsmar v. Phelps Dodge Corp. Life, Accidental

                                        -6-
Death & Dismemberment & Dependent Life Ins. Plan, 

, 796 (10th

Cir. 2010). In an ERISA case like this, where both parties move for summary

judgment and stipulate that no trial is necessary, “summary judgment is merely a

vehicle for deciding the case; the factual determination of eligibility for benefits

is decided solely on the administrative record, and the non-moving party is not

entitled to the usual inferences in its favor.” 

this court accords no deference to the district court’s decision. 

United of Omaha’s decisions are reviewed under the

arbitrary and capricious or abuse of discretion standard because both the LTD and

STD policies grant United of Omaha discretion and final authority to construe and

interpret the terms of the policy. See 

this court’s “review

is limited to determining whether the interpretation of the plan was reasonable

and made in good faith.” 

indicia of an arbitrary and capricious denial of benefits include

lack of substantial evidence, mistake of law, bad faith, and conflict of interest by

the fiduciary.” Graham v. Hartford Life & Acc. Ins. Co., 

, 1357

(10th Cir. 2009) (quotation omitted). “Substantial evidence is such evidence that

a reasonable mind might accept as adequate to support the conclusion reached by

the decisionmaker. Substantial evidence requires more than a scintilla but less

than a preponderance.” Sandoval v. Aetna Life & Cas. Ins. Co., 

,

382 (10th Cir. 1992) (quotations omitted).

                                          -7-
      Because United of Omaha acts as both the claims administrator and payor

of benefits, “we must weigh the conflict ‘as a factor in determining whether there

is an abuse of discretion,’ according it more or less weight depending on its

seriousness.” Murphy v. Deloitte & Touche Group Ins. Plan, 

,

1158 n.1 (10th Cir. 2010) (quoting Metro. Life Ins. Co. v. Glenn, 

,

115 (2008)). The seriousness of a conflict of interest is “proportionate to the

likelihood that the conflict affected the benefits decision.” Graham v. Hartford

Life & Acc. Ins. Co., 

, 1358 (10th Cir. 2009). “A conflict is more

important when ‘circumstances suggest a higher likelihood that it affected the

benefits decision,’ but less so when the conflicted party ‘has taken active steps to

reduce potential bias and to promote accuracy.’” Hancock v. Metro. Life Ins. Co.,

, 1155 (10th Cir. 2009) (quoting 

).

      Cardoza claims United of Omaha’s conflict of interest and procedural

irregularities (i.e., an initial failure to provide Cardoza its internal guidelines,

protocols, and procedures in making claims determinations) compromised its

fiduciary duty to act solely in the interest of the participant and beneficiaries.

Thus, Cardoza asserts, the deference this court would ordinarily accord to United

of Omaha’s benefits decision should be lessened to neutralize the untoward

influence of United of Omaha’s conflict, which contaminated its decision-making

process. United of Omaha argues that, because its conflict played no role in its

benefits calculations, this court should give it only minimal, if any, consideration.

                                           -8-
      Cardoza was granted limited discovery in this case in order to obtain

information relevant to United of Omaha’s conflict of interest and to determine

why United of Omaha initially claimed there were no internal guidelines,

protocols, and procedures concerning the determination of Cardoza’s LTD

benefits. As a result, United of Omaha’s Director of Customer Service in the

Clinical Services Department of its Claims Division attested to the following

facts, which show the steps United of Omaha took to minimize its conflict of

interest: (1) “claims analysts are not allowed access to claim reserve information

and are not provided actuarial or financial information regarding their claims

handling or the effect of their claims handling on company financial results” and

(2) “all claim analysts are physically segregated from the Premium, Sales,

Underwriting, and Actuary departments, as well as Quality Auditors.”

Additionally, “claims personnel are paid a salary or hourly wage, and are not paid

any incentive compensation based on the payment or denial of claims” and “any

bonus pay is based on company-wide performance.” Thus, the record shows

United of Omaha has taken active steps to reduce potential bias and to promote

accuracy. Cardoza has provided no evidence to the contrary. Thus, this court

will consider United of Omaha’s conflict of interest as a factor in determining

whether its decisions were arbitrary and capricious. However, because United of

Omaha has taken active steps to reduce potential bias and promote accuracy, this

court will accord the conflict little weight in making that determination.

                                         -9-
      2. LTD Benefits Calculation

      The terms of the LTD policy and the evidence in the administrative record

show United of Omaha’s calculation of Cardoza’s LTD benefits was reasonable

and made in good faith. Courts review ERISA claims as they “would any other

contract claim by looking to the terms of the plan and other evidence of the

parties’ intent. If plan documents are reviewed and found not to be ambiguous,

then they may be construed as a matter of law.” Hickman v. GEM Ins. Co., 

, 1212 (10th Cir. 2002); see also Kennedy v. Plan Adm’r for DuPont

Sav. & Inv. Plan, 

, 299-302 (2009) (stating the text of the plan

documents controls). In making this determination, this court “consider[s] the

common and ordinary meaning as a reasonable person in the position of the plan

participant would have understood the words to mean.” Scruggs v. ExxonMobil

Pension Plan, 

, 1362 (10th Cir. 2009) (quotation and alteration

omitted).

      In this case, LTD benefits are calculated based on an insured’s basic

monthly earnings. According to the LTD policy, “Basic Monthly Earnings means

Your average gross monthly earnings received from the Policyholder and verified

by premium We have received during the Calendar Year immediately prior to the

year in which Your Disability began.” Because Cardoza’s disability began in

2008, his basic monthly earnings were his “average gross monthly earnings

received from [Durango-McKinley] and verified by premium” United of Omaha

                                       -10-
received during 2007. The “verified by premium” clause of the LTD policy is

unambiguous and “reasonably susceptible to [only] one meaning.” Miller v.

Monumental Life Ins. Co., 

, 1250 (10th Cir. 2007) (quotations

omitted). The plain text of the LTD policy instructs United of Omaha to calculate

Cardoza’s LTD benefits based on his earnings as verified by premium received by

United of Omaha during 2007.

      The record supports United of Omaha’s assertion Cardoza’s earnings as

verified by the premium United of Omaha received during 2007 were $24,273.60

annually. The record contains a screenshot, provided by United of Omaha, which

shows the contents of the “earnings tab” in Cardoza’s file on its computer system.

The information on the tab indicates Cardoza’s annual earnings were

“$23,568.50,” effective February 1, 2007, when the LTD policy took effect, but

increased to “$24.273.60” effective June 4, 2007. In a letter sent to Cardoza

during the LTD claims process, United of Omaha asserted the information on this

screenshot “verifies the employer’s report of income and what premium was

received on for the calendar year 2007.” Another screenshot provided by United

of Omaha also reflects an annual basic salary of $24,273.60 and shows Cardoza

was classified as an “A005” employee. 1 United of Omaha asserts this shows

Cardoza was classified as an “Eligible Hourly Employee[] whose Annual


      1
       The STD claim form submitted by Durango-McKinley in July 2008 also
indicates Cardoza was classified as “A005.”

                                       -11-
Earnings are less than $40,000.” Pursuant to both the LTD and STD policies,

individual premiums are based on an insured’s classification when a period of

coverage begins.

      In addition, an internal United of Omaha record of a December 2008 phone

call between a claim handler and an employee who was researching the

calculation of Cardoza’s benefits states: “Benefits were calculated based on the

salary we received premium on. [Durango-McKinley] did not report the ‘per

load’ earnings for this claimant, therefore benefits would reflect the salary as

billed.” Moreover, in several letters sent by United of Omaha to Cardoza during

the claims and administrative appeals process, United of Omaha stated that

Durango-McKinley paid premiums in 2007 based on the $24,273.60 earnings

figure and Cardoza’s classification as an hourly employee earning less than

$40,000 annually.

      Finally, Cardoza does not point to any evidence which calls into question

United of Omaha’s assertion that it received premiums based on the $24,273.60

earnings figure and Cardoza’s classification as an hourly employee earning less

than $40,000 annually. Indeed, Cardoza does not dispute, nor does the record

show he has ever disputed, those assertions. In fact, Cardoza expressly admitted

at the summary judgment stage that Durango-McKinley paid premiums based on

the $24,273.60 figure.




                                         -12-
      Relying on Mort v. United of Omaha Life Ins. Co., 444 F. App’x 208,

209-10 (9th Cir. 2011), Cardoza argues the “verified by premium” clause is not

“an absolute bar to relying on accurate income statements in calculating benefits.”

In Mort, the Ninth Circuit analyzed “verified by premium” language similar to

that relied on by United of Omaha in this case and concluded:

             The policy allows United to obtain income documentation
      directly from [the insured] at any time, without further verification,
      and “adjust [its] payment to the Employee based on this
      information.” The broader context of the policy therefore does not
      suggest that the verification clause is an absolute bar to relying upon
      accurate income statements in calculating benefits, even if a related
      premium is not received.

argues that, like in Mort, the LTD policy in this case allowed

United of Omaha to obtain income documentation directly from

Durango-McKinley at any time, without further verification, and change premium

rates when it discovered a change in eligibility for benefits under the policy.

Thus, Cardoza argues, like in Mort, the broader context of the LTD policy

suggests the verification clause is not an absolute bar to relying upon accurate

income statements in calculating benefits, regardless of the premium United of

Omaha received. Moreover, Cardoza asserts, prior to his claim for LTD benefits,

United of Omaha obtained accurate income statements and had knowledge of

Cardoza’s actual 2007 earnings as of July 2008, when Durango-McKinley filed

his claim for STD benefits. He further asserts that, despite this knowledge, and




                                         -13-
despite having the ability to do so, United of Omaha did not change its premium

rates.

         Cardoza’s reliance on Mort is misplaced. In determining that the broader

context of the policy in that case did not suggest the verification clause was an

absolute bar to relying on accurate income statements in calculating benefits, the

Ninth Circuit noted that the policy allowed United of Omaha to “adjust [its]

payment to the Employee” based on updated income documentation. 

such clause in the LTD policy in this case. While the LTD policy allowed

United of Omaha to obtain income documentation directly from

Durango-McKinley at any time, without further verification, there is no provision

allowing United of Omaha to adjust its payment to the employee based on that

information. United of Omaha was permitted merely to change its premium rates

if it discovered a change in eligibility for benefits under the policy.

         Moreover, whether a change in Cardoza’s premium rates was justified

based on United of Omaha’s receipt of information in July 2008, which showed

his actual earnings in 2007 were much higher than $24,273.60, is irrelevant.

Cardoza’s LTD benefits calculation is based on earnings “verified by premium”

received by United of Omaha during the previous calendar year, in this case,

2007. Thus, any change in premiums that may have been warranted as of July

2008 would not affect the LTD benefits calculation in this case.




                                         -14-
      Cardoza also argues it was United of Omaha’s error that led

Durango-McKinley to pay the “wrong premium.” He argues it was United of

Omaha, not Durango-McKinley, that determined the premium using its knowledge

of the nature of Durango-McKinley’s business and its own expertise in

underwriting insurance policies. Thus, he asserts, the district court was correct in

concluding “[t]he issue with premiums received is between Durango-McKinley

and United of Omaha” and Cardoza “should not be penalized for an error that

from the record appears to be due to United of Omaha’s underwriters not initially

considering tonnage pay.”

      In making the latter statement, the district court relied on an internal United

of Omaha record of a December 2008 phone call between a claim handler and an

employee who was researching the calculation of Cardoza’s benefits. The

employee wrote: “Benefits were calculated based on the salary we received

premium on. [Durango-McKinley] did not report the ‘per load’ earnings for this

claimant, therefore benefits would reflect the salary as billed,” and “It is

questionable as to whether or not the ‘per load’ amount was initially taken into

consideration when Underwriting rated the case. Since commission[s] are

included under the Definition of Earnings, were ‘per load’ wages to be included

under commissions? If so, we would need clarification from Underwriting.”

These statements do not show any error was made in determining the premium

owed in connection with Cardoza’s disability insurance, let alone an error made

                                         -15-
by United of Omaha’s underwriters. The statements merely raise the question

whether tonnage pay was included as commissions when United of Omaha wrote

the coverage, without answering the question. Indeed, the statement indicates

that not all of Cardoza’s tonnage pay was reported by Durango-McKinley when it

states “[Durango-McKinley] did not report the ‘per load’ earnings” for Cardoza.

      Moreover, Cardoza fails to point to any other evidence in the record

supporting his assertion the determination of the premium due in connection with

his disability insurance was an error made by United of Omaha. The evidence is

to the contrary. In three separate letters sent to Cardoza during the claims and

administrative appeals process, United of Omaha stated it determined the

premium due in connection with his disability insurance based on information

provided by Durango-McKinley, which, United of Omaha stated, classified

Cardoza as an hourly employee earning less than $40,000 a year and reported his

annual earnings in 2007 as $24,273.60. Cardoza does not contest those assertions

on appeal and this court is unable to find any record evidence that Cardoza has

ever contested those assertions. Both the LTD and STD policies required

Durango-McKinley to furnish information regarding “persons insured by

classification” and “any other insurance information which [United of Omaha]

may reasonably request” for the purpose of policy administration. Furthermore,

both policies allowed United of Omaha to “rely on the accuracy and completeness

of any information furnished by [Durango-McKinley] or an insured person.”

                                        -16-
      Finally, the record shows that when United of Omaha discovered the

discrepancy between Cardoza’s reported and actual earnings, it gave

Durango-McKinley the option of paying back-premiums to insure its drivers,

including Cardoza, for their actual earnings, but Durango-McKinley refused. 2

      In sum, the plain text of the LTD policy instructs United of Omaha to

calculate Cardoza’s LTD benefits based on his earnings “verified by premium”

received by United of Omaha during 2007. The record supports United of

Omaha’s assertion it received premiums from Durango-McKinley during 2007

based on reported annual earnings of $24,273.60 and the fact Cardoza was

classified as an hourly employee earning less than $40,000 a year. Thus, United

of Omaha’s decision to base its LTD benefits calculation on that figure was

reasonable and made in good faith and, therefore, not arbitrary and capricious. 3

      2
        Cardoza also asserts United of Omaha failed to appeal the district court’s
conclusion United of Omaha’s decision to treat Cardoza’s tonnage pay as “extra
compensation” for purposes of calculating his LTD and STD benefits was
arbitrary and capricious. Thus, he argues, the district court’s ruling on that issue
stands and the arguments United of Omaha makes on appeal must be viewed
against the backdrop of that ruling. United of Omaha admits it has abandoned its
so-called “tonnage argument” on appeal. Thus, we need not address the
arguments Cardoza makes on appeal concerning United of Omaha’s tonnage
argument. Moreover, to the extent it is relevant, this court has considered the
district court’s conclusion regarding United of Omaha’s tonnage argument in
reviewing United of Omaha’s argument on appeal.
      3
        United of Omaha also appeals the district court’s denial of its motion to
alter or amend the judgment. In light of this court’s conclusion United of
Omaha’s decision to calculate Cardoza’s LTD benefits using the earnings of
$24,273.60, as verified by premium it received in 2007, was not arbitrary and
                                                                        (continued...)

                                        -17-
      3. STD Benefits Calculation

      The terms of the STD policy and the evidence in the administrative record

show United of Omaha’s recalculation of Cardoza’s STD benefits based on the

annual earnings figure of $24,273.60, which Durango-McKinley paid premiums

on in 2007, is not reasonable. Pursuant to the STD policy, Cardoza’s STD

calculation is based on his weekly earnings. According to the policy, “Weekly

Earnings means Your average gross weekly earnings received from

[Durango-McKinley] during the Calendar Year immediately prior to the year in

which Your Disability began.” Thus, the STD policy lacks the “verified by

premium” language contained in the LTD policy. This language in the STD

policy is unambiguous and “reasonably susceptible to [only] one meaning.”

(quotations omitted). It instructs United of Omaha to

calculate Cardoza’s STD benefits based on his earnings, as defined by the STD

policy, for 2007. It is undisputed Cardoza’s earnings for 2007 were $61,881.47

and that United of Omaha had this earnings information at the time it calculated

his STD benefits. 4 Thus, United of Omaha’s decision to recalculate Cardoza’s

      3
       (...continued)
capricious, we need not reach this issue. United of Omaha’s LTD calculation
using that figure puts Cardoza’s monthly benefit at less than the maximum
monthly benefit applicable to hourly employees earning less than $40,000 per
year.
      4
       On appeal, United of Omaha does not argue any portion of Cardoza’s
actual earnings were excludable from the STD calculation based on the definition
                                                                   (continued...)

                                       -18-
STD benefits based on the earnings figure upon which Durango McKinley paid

premiums in 2007 is contrary to the plain language of the STD policy, and,

therefore, not reasonable and arbitrary and capricious. Cardoza need not return

any portion of the STD payments he received, which were calculated using the

appropriate earnings figure.

      United of Omaha argues, just as it did in connection with the LTD benefits

calculation, that its calculation of Cardoza’s STD benefits using the classification

information and $24,273.60 earnings figure it asserts Durango-McKinley reported

and paid premiums on in 2007, was reasonable. It asserts the STD policy allowed

it to “rely on the accuracy and completeness of any information furnished by the

Policyholder or an insured person.” Thus, it argues, even without the “verified by

premium” language, the plain text of the policy requires Cardoza to return the

alleged STD overpayment. Moreover, it asserts, Durango-McKinley should not

be allowed to under-report earnings (and pay lower premiums) when purchasing

STD coverage, only to report higher earnings (and expect payment of higher

benefits) when claims are actually filed.

      These arguments do not support United of Omaha’s position it was

reasonable to calculate Cardoza’s STD benefits based on the earnings figure


      4
       (...continued)
of Weekly Earnings, which expressly excludes “Policyholder contributions to
deferred compensation plans, bonuses, shift differential, or other extra
compensation received from the Policyholder.”

                                        -19-
Durango-McKinley reported and paid premiums on in 2007. The plain language

of United of Omaha’s own STD policy unambiguously instructs United of Omaha

to calculate Cardoza’s STD benefits based on earnings alone. Whether

Durango-McKinley reported or paid premiums on a different earnings figure is

irrelevant. See Allison v. Bank One-Denver, 

, 1236 (10th Cir.

2002) (“We have repeatedly rejected efforts to stray from the express terms of a

plan, regardless of whom those express terms may benefit.”).

      B.    Attorney’s Fees and Costs

      The parties agree this court reviews the district court’s fee decision for an

abuse of discretion. Thorpe v. Ret. Plan of the Pillsbury Co., 

, 445

(10th Cir. 1996). A fee claimant need not be a prevailing party to be eligible for

an award of attorney’s fees and costs under ERISA. Hardt v. Reliance Standard

Life Ins. Co., 

, 2152 (2010). A court may award fees and costs

under 29 U.S.C. § 1132(g)(1) as long as the fee claimant has achieved “some

degree of success on the merits.” 

established five factors a court may consider in deciding

whether to exercise its discretion to award attorney’s fees and costs: (1) the

degree of the opposing party’s culpability or bad faith; (2) the opposing party’s

ability to satisfy an award of fees; (3) whether an award of fees would deter

others from acting under similar circumstances; (4) whether the party requesting

fees sought to benefit all participants and beneficiaries of an ERISA plan or to

                                        -20-
resolve a significant legal question regarding ERISA; and (5) the relative merits

of the parties’ positions. Gordon v. U.S. Steel Corp., 

, 109 (10th

Cir. 1983). No single factor is dispositive and a court need not consider every

factor in every case. McGee v. Equicor-Equitable HCA Corp., 

,

1209 n.17 (10th Cir. 1992).

           The district court based its decision to grant Cardoza’s motion for

attorney’s fees and costs largely on its conclusions United of Omaha’s LTD

benefits calculation and its STD benefits recalculation were not reasonable and

not made in good faith. This court has concluded, however, that United of

Omaha’s LTD calculation was reasonable and made in good faith. Because this

court’s decision so significantly alters the district court’s ruling, on remand the

court must address anew all issues related to the award of attorney’s fees and

costs. 5

IV.        Conclusion

           For the foregoing reasons this court reverses the district court’s grant of

summary judgment for Cardoza with respect to United of Omaha’s LTD benefits

calculation based on our conclusion the LTD benefits calculation was reasonable

and made in good faith. This court affirms the district court’s grant of summary



           5
        We need not, therefore, address United of Omaha’s argument that the fees
the district court granted were unreasonable and unsupported by the evidence or
its argument that it is entitled to fees and costs.

                                            -21-
judgment for Cardoza with respect to United of Omaha’s STD benefits

recalculation and request for reimbursement based on our conclusion the STD

benefits recalculation was not reasonable. Finally, this court remands for

reconsideration of the issue of attorney’s fees and costs.




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