:: Equitable Relief May Not Include Reimbursement Of Erroneous Payment Of Medical Benefits

It is important to note that neither the Fourth Circuit nor the Supreme Court has dealt directly with a case with this fact pattern, but additional support for this conclusion can be found in Fourth Circuit dicta. The court in Cohen wrote that the plaintiff’s claim for reimbursement of overpaid disability insurance “is arguably unauthorized under § 1132(a)(3),” because the Supreme Court in Great-West “denied a fiduciary’s restitution claim against a beneficiary when the property sought could no longer be traced to a particular fund or property, because the fiduciary [was] seeking a legal remedy—the imposition of personal liability on the beneficiary to pay a sum of money owed to the plan—outside the equitable relief afforded to fiduciaries in civil actions under § 502(a)(3).”

Food Emplrs. Labor Relations Ass’n & United Food & Commer. Workers Health & Welfare Fund v. Dove, 2014 U.S. Dist. LEXIS 159773 (D. Md. Nov. 12, 2014) (Magistrate Judge Report and Recommendation)

This is a case where a multiemployer plan sued to recover medical expenses paid in error.  The Defendant, originally a full time employee, had added coverage for his wife as his dependent.

Later, the Defendant became a part time covered employee, requiring that he pay an additional premium to maintain his wife’s coverage. He did not.  Nonetheless, his wife incurred medical expenses which the Fund paid.

The magistrate judge began with the observation that  “equitable relief” under ERISA is constrained to “the kinds of relief ‘typically available in equity’ in the days of ‘the divided bench’ before law and equity merged.” U.S. Airways, Inc v. McCutchen, 569 U.S. (slip op., at 5), 133 S. Ct. 1537, 1544, 185 L. Ed. 2d 654 (2013).  Nonetheless, the Fourth Circuit created a “common law remedy of unjust enrichment” within ERISA. Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985, 994 (4th Cir. 1990).

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:: Plaintiff’s Section 502(a)(3) Claim Prevails Over Varity-Based Defense

The Courts of Appeals disagree as to whether Varity prohibits a plaintiff from simultaneously pursuing equitable relief pursuant to Section 502(a)(3) and benefits due under the terms of the plan pursuant to Section 502(a)(1)(B).  The Third Circuit has not ruled on the issue, and district judges within the Third Circuit are split.

Trechak v. Seton Co. Supplemental Exec. Ret. Plan, 2010 U.S. Dist. LEXIS 124750 (E.D. Pa. Nov. 24, 2010)

This recent district court opinion addresses several recurring issues about available civil remedies under ERISA. The facts involve a “top hat” plan which is essentially a supplemental retirement benefit plan. The issues were presented in the context of a motion to dismiss.

The district court ultimately permitted the plaintiff to plead a claim for benefits under the terms of the plan (ERISA Section 502(a)(1)(B)) as well as equitable relief under ERISA Section 502(a)(3). The court noted a division in the Third Circuit among the district courts.

Before arriving at that analysis, however, the Court had to determine whether the plaintiff’s claim for equitable relief was preempted. The Court determined that it was not, stating:

Plaintiff has conceded that his unjust enrichment claim is preempted to the extent it is grounded in state law, as discussed above . . . However, Plaintiff contends that the claim survives as a claim for equitable relief under ERISA. Plaintiff clarified in his Response brief that Count Four was pled in the alternative as an ERISA claim for equitable relief pursuant to 29 U.S.C. § 1132(a)(3)(B) (“Section 502(a)(3)”).

In Nagy v. De Wese, 705 F. Supp. 2d 456 (E.D. Pa. 2010) (Yohn, J.), the plaintiff, whose benefit payments pursuant to an ERISA plan had ceased, clarified in his response to the defendant’s motion for judgment on the pleadings that his unjust enrichment claim was “more properly characterized as a demand for equitable relief” under Section 502(a)(3). Id. at 461. Judge Yohn held that the unjust enrichment claim, as pled in the alternative as a claim for equitable relief, was not preempted. Id.

Here, as in Nagy, Plaintiff has clarified that his unjust enrichment claim was pled in the alternative as a claim for equitable relief pursuant to Section 502(a)(3).

The Plaintiff’s next hurdle appeared in the frequently encountered defense that the equitable relief claim was unavailable because the Plaintiff had asserted a claim for benefits.

. . . the Court must determine whether Plaintiff can plead a Section 502(a)(3) claim simultaneously with his claim in Count One for wrongful denial of benefits under 29 U.S.C. § 1132(a)(1)(B) (“Section 502(a)(1)(B)”).

Since Varity Corp. v. Howe, 516 U.S. 489, 116 S. Ct. 1065, 134 L. Ed. 2d 130 (1996) held that Section 502(a)(3) is a “catchall” provision that “offer[s] appropriate equitable relief for injuries caused by violations that § 502 does not elsewhere adequately remedy”, courts have often held that (a)(3) claims cannot be asserted where a claim for benefits has also been asserted.

The district court distinguished Varity, however, and permitted the (a)(3) claims to stand, at least at this stage of the proceedings, stating:

The Courts of Appeals disagree as to whether Varity prohibits a plaintiff from simultaneously pursuing equitable relief pursuant to Section 502(a)(3) and benefits due under the terms of the plan pursuant to Section 502(a)(1)(B).

The Third Circuit has not ruled on the issue, and district judges within the Third Circuit are split. For example, in Parente v. Bell Atlantic Pennsylvania, No. Civ. A. 99-5478, 2000 U.S. Dist. LEXIS 4851, 2000 WL 419981 (E.D. Pa. Apr. 18, 2000), Judge Reed held that “under Varity, a plaintiff is only precluded from seeking equitable relief under § 1132(a)(3) when a court determines that plaintiff will certainly receive or actually receives adequate relief for her injuries under § 1132(a)(1)(B) or some other ERISA section.” 2000 U.S. Dist. LEXIS 4851, [WL] at *3.

Judge Reed found that Fed. R. Civ. P. 8(e) specifically contemplated pleading in the alternative. Id. Therefore, Judge Reed reserved judgment on “the question of whether (and what kind of) equitable relief under § 1132(a)(3) is appropriate” until later in the litigation, when it could be determined “whether § 1132(a)(1)(B) will in fact provide the plaintiff adequate relief.” Id. (denying the motion to dismiss). See also Tannenbaum v. UNUM Life Ins. Co. of Am., No. Civ. A. 03-CV-1410, 2004 U.S. Dist. LEXIS 5664, 2004 WL 1084658, at *4 (E.D. Pa. Feb. 27, 2004) [*17] (Surrick, J.) (denying the motion to dismiss a claim for breach of fiduciary duty based on Section 502(a)(3) because “[a]t this stage, we cannot know whether Plaintiff will be able to prove his entitlement to benefits under § 1132(a)(1)(B)”).

If the plaintiff proceeds on both claims in the alternative, the defendant may properly reassert the argument that the plaintiff cannot recover under both ERISA sections at the summary judgment stage. Koert v. GE Grp. Life Assur. Co., No. Civ. A. 04-CIV-5745, 2005 U.S. Dist. LEXIS 14132, 2005 WL 1655888, at *3 (E.D. Pa. July 14, 2005) (Stengel, J.) (denying motion to dismiss and allowing plaintiff to proceed on claims for wrongful denial of benefits and breach of fiduciary duty simultaneously).

Note: For a contrary outcome, the Court noted the opinion in Cohen v. Prudential Ins. Co., Civ. A. No. 08-5319, 2009 U.S. Dist. LEXIS 71422, 2009 WL 2488911 (E.D. Pa. Aug. 12, 2009), where the judge ruled that held that the Plaintiff could “only permit the § (a)(3) claim to progress if the plaintiff can demonstrate that § (a)(1) (B) alone may not provide an adequate remedy.” 2010 U.S. Dist. LEXIS 32166, [WL] at *4; and see Miller v. Mellon Long Term Disability Plan, Civ. A. No. 09-1166, 2010 U.S. Dist. LEXIS 63167, 2010 WL 2595568, at *6 (W.D. Pa. June 25, 2010)

Other Circuits – The Court noted decisions in Katz v. Comprehensive Plan of Group Ins., 197 F.3d 1084, 1088 (11th Cir. 1999), Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610 (5th Cir. 1998), Frommert v. Conkright, 433 F.3d 254, 270 (2d Cir. 2006) and Forsyth v. Humana, Inc., 114 F.3d 1467, 1475 (9th Cir. 1997) which align with the Cohen reasoning.

Claim Against Individuals – The Court held that a claim for equitable relief under Section 502(a)(3) may be pled against an individual defendant, citing Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 120 S. Ct. 2180, 147 L. Ed. 2d 187 (2000) (“502(a)(3) admits of no limit . . . on the universe of possible defendants.”)

Section 510 Claim – I am not a big fan of Section 510 theories, but when they are appropriate then they have a place.  It just seems they so often don’t.  In any event, the Defendants also moved to dismiss Plaintiff’s claim for interference with benefit rights, pursuant to Section 510.

The Court noted that:

A plaintiff must make a three-pronged showing to establish a prima facie case under section 510: “1. prohibited employer conduct; 2. taken for the purpose of interfering; 3. with the attainment of any right to which the employee may become entitled.” Dewitt v. Penn-Del Directory Corp., 106 F.3d 514, 522 (3d Cir. 1997) (quoting Gavalik v. Cont’l Can Co., 812 F.2d 834, 852 (3d Cir. 1987)).

. . .

In this case, Plaintiff does not allege that he was discharged, fined, suspended, expelled, or disciplined by his employer. Furthermore, Plaintiff has not pled facts that show unlawful discrimination within the employer-employee relationship, such as demotion or termination. Plaintiff’s allegations that Defendants decided to suspend payments owed him, improperly influenced the Plan Administrators, and sent him an unauthorized notice terminating his benefits all pertain to actions outside of the employer-employee relationship for purposes of Section 510. Id

Defendants also moved to dismiss Plaintiff’s claim for interference with benefit rights, pursuant to Section 510. Section 510 of ERISA states:
It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan . . . The provisions of section 1132 of this title shall be applicable in the enforcement of this section.
29 U.S.C. § 1140. A plaintiff must make a three-pronged showing to establish a prima facie case under section 510: “1. prohibited employer conduct; 2. taken for the purpose of interfering; 3. with the attainment of any right to which the employee may become entitled.” Dewitt v. Penn-Del Directory Corp., 106 F.3d 514, 522 (3d Cir. 1997) (quoting Gavalik v. Cont’l Can Co., 812 F.2d 834, 852 (3d Cir. 1987)).
Congress intended for Section 510 to protect beneficiaries from dismissal and adverse employment actions such as “termination  [*13] motivated by an employer’s desire to prevent a pension from vesting.” Ingersoll-Rand, 498 U.S. at 143. The Third Circuit interpreted “discriminate against,” the broadest term in Section 510, as being “limited to actions affecting the employer-employee relationship.” Haberern v. Kaupp Vascular Surgeons Ltd. Defined Benefit Pension Plan, 24 F.3d 1491, 1503 (3d Cir. 1994) (holding that amending the defined benefit plan to eliminate life insurance benefits for beneficiaries over a certain age, which affected only the plaintiff, did not constitute “discrimination” in the employer-employee relationship).
In this case, Plaintiff does not allege that he was discharged, fined, suspended, expelled, or disciplined by his employer. Furthermore, Plaintiff has not pled facts that show unlawful discrimination within the employer-employee relationship, such as demotion or termination. Plaintiff’s allegations that Defendants decided to suspend payments owed him, improperly influenced the Plan Administrators, and sent him an unauthorized notice terminating his benefits all pertain to actions outside of the employer-employee relationship for purposes of Section 510. Id

Thus, the Court provides a kind of roadmap for what a Section 510 claim has to look like – if it can fit the facts.

(I uploaded this case on erisaboard.com)

:: Equitable Liens In Restitution – An Alternative Under ERISA Section 502(a)(3)?

Werner also sought restitution, asking the district court to impose a constructive trust or an equitable lien on the $ 3895 that Primax obtained from Progressive. The court found that request to be moot, however, because Primax had returned those funds to Progressive nearly 20 months prior to Werner’s filing of this action. Werner argues that the district court erred by assuming that a specific res had to be identifiable before it could impose an equitable lien.

Werner v. Primax Recoveries, Inc
., 2010 FED App. 0112N (6th Cir.) (6th Cir. Ohio 2010)

The Sixth Circuit’s unpublished opinion in Werner v. Primax Recoveries touches on an interesting issue regarding the nature of “equitable liens by agreement” as distinguished from “equitable liens in restitution” and the scope of ERISA Section 502(a)(3). .

The Facts

Werner was involved in a traffic accident on June 28, 2002, and required medical treatment for his injuries.

In addition to coverage through an employer-sponsored health-insurance policy through Medical Mutual of Ohio he also had “medpay” coverage through his automobile insurance policy that covered up to $ 5000 in medical-expense benefits.

Some of his medical bills were submitted to his health plan and some were submitted against his medpay coverage. The health plan apparently paid the bills submitted to it, but then asserted a claim against Werner’s medpay coverage. This subrogation claim exhausted the $ 5000 medpay limit.

For reasons undisclosed, some of the providers ended up with their bills unpaid. In fact, one of Werner’s medical providers sued him for non-payment.

Demand On Progressive

Rather than pursue payment of the outstanding bills through the health plan, Werner demanded that Progressive seek a refund from the health plan’s recovery agent (Primax) of what had been previously paid to the health plan out of his medpay coverage. (The reasons for this approach are not clear from the opinion.)  The repayment would apparently restore the medpay coverage in sufficient amount to satisfy the health care provider’s claims.

Werner added claims against Primax in the course of the personal injury claim based upon its claim on the medpay coverage.  In an effort to settle the controversy, Primax refunded the money it had recovered to Progressive.

The matter did not end there, however.  Werner sought class action relief in an independent action in federal district court – a case which was ultimately dismissed.   The district court based its holding on a number of grounds, including standing, mootness, and preemption.

Appeal Of Denied ERISA Claims

Of the arguments asserted on appeal, the most interesting argument was Werner’s attempt to impose liability under ERISA in terms of equitable relief under ERISA Section 502(a)(3).  (We will ignore the standing and mootness problems with his claims for purposes of discussion.)

In the words of the Court:

Werner also sought restitution, asking the district court to impose a constructive trust or an equitable lien on the $ 3895 that Primax obtained from Progressive. The court found that request to be moot, however, because Primax had returned those funds to Progressive nearly 20 months prior to Werner’s filing of this action.

Werner argues that the district court erred by assuming that a specific res had to be identifiable before it could impose an equitable lien. He relies solely on a passage in Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356, 126 S. Ct. 1869, 164 L. Ed. 2d 612 (2006), in which the Court explained that “strict tracing” of funds is not necessary when an equitable lien is established by an agreement. See id. at 364-65.

But that reliance is misplaced: Werner has no agreement with Primax that creates an equitable lien. Rather, he seeks an equitable lien in restitution, i.e., the return of something that he alleges Primax wrongfully took. Sereboff expressly distinguishes such claims.

The return of the funds by Progressive proved fatal to this claim:

Moreover, Sereboff still requires that a request for restitution under § 502(a)(3) target “‘particular funds or property in the defendant’s possession.'” Id. at 362 (quoting Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213, 122 S. Ct. 708, 151 L. Ed. 2d 635 (2002) (emphasis added)).

Werner does not dispute that Primax returned the $ 3895 to Progressive. We fail to see why that would not already amount to restitution here, thus mooting the request–unless what Werner actually seeks is possession of the $ 3895 for himself. But for that, presumably he may now file reimbursement claims with Progressive. Restitution certainly does not require that Primax pay twice.

Our review of Sereboff also leads us to conclude that Werner’s restitution claim is for relief that a court cannot grant under § 502(a)(3), because he seeks legal rather than equitable restitution. See id. at 361-62 (distinguishing the two types and explaining that only equitable restitution is available under § 502(a)(3)); Fed. R. Civ. Pro. 12(b)(6).

The district court properly granted summary judgment on this claim.

Note: The “agreement” required to impose a Sereboff-like remedy is an intriguing issue.  In Sereboff, of course, the Court did not based its finding of an “agreement” on any contractual document.  The “agreement” was implied from the terms of the plan which contained a reimbursement provision.

So when may such an agreement be implied?  When Primax recovered funds as the health plan’s recovery agent, it did no more than act under the terms of the plan.   The Court was correct in finding that no equitable lien by express or implied agreement supported Werner’s claims.

The Court goes further, however, and makes an observation that may have some value beyond a typical subrogation case.  The Court describes the relief sought by Werner as an “equitable lien in restitution”.  Note that the Court does not find that claim to be “legal” (and thus unavailable under (a)(3) as “other equitable relief”).  Rather, since the funds have been returned, the claim was legal inasmuch as no res remained upon which to impose an equitable remedy.

This notion of equitable relief in restitution may just the remedy that an ERISA plan should dial up when seeking refunds from recalcitrant health providers.  The troubling issue of whether an equitable lien by agreement can be found may perhaps by sidestepped by this arabesque.  What the plan asserts is simply an equitable lien in restitution.   The Werner opinion, though unpublished, should go in the desk file.

:: PHCS Rate Schedule Challenged In New Managed Care Litigation

Chaffin v. Humana (S.D. Tex.)  challenges Humana’s alleged use of the “Prevailing Healthcare Charges System” to establish rates of reimbursement for out of network providers.  The case is brought by members of Humana’s “National Point of Service” insurance plan, according to the complaint.

The complaint alleges that Ingenix, a subsidiary of United Healthcare Group, operates a proprietary database system known as the “Prevailing Healthcare Charges System.” PHCS purportedly derives a percentile -segmented survey of “usual and customary” charges by factoring in insurers’ billing information for similar types of medical services.

The use of the PHCS was investigated by the New York Attorney General last year. (See,:: New York Attorney General To Sue Ingenix & United Health Care Over “Rigged Data”) The validity of the data and parameters employed by the system is now at the center of the controversy in the Chaffin v. Humana case.

These issues were raised in the Health Net litigation. :: Health Net Settlement At $215 Million May Set Class Action Record.

As I noted in :: PHCS Provider Reimbursement Controversy Affects ERISA Self-Funded Health Plans, the PHCS issue could have broader implications for the self-funded health plan community. This is because self-funded claims administrators also use the PHCS to establish reimbursement rates for out of network providers.

Note:   See also, American Medical Ass’n v. United Healthcare Corp. Slip Copy, 2006 WL 3833440 S.D.N.Y. 2006 (December 29, 2006)  and :: Court Permits Antitrust and RICO Claims To Go Forward Based Upon UCR Database Allegations.  (I attached the Chaffin v. Humana complaint to a cross post on erisaboard.com.)

:: District Court Holds That Potential Claim For Benefits Forecloses Other ERISA Relief

On September 13, 2006, Mr. Tebbetts consulted with a doctor because he was experiencing pain in his abdomen, and the doctor ordered a CT scan of Mr. Tebbetts’ abdomen. The doctor sought pre-approval from Defendants of the CT scan, but Defendants declined coverage. Several days later, Mr. Tebbetts was taken to the hospital where a CT scan and ultrasound revealed that Mr. Tebbetts had a cyst on his pancreas that had caused his spleen to rupture. Mr. Tebbetts’ spleen was surgically removed.

Tebbetts v. Blue Cross Blue Shield of Ala., 2009 U.S. Dist. LEXIS 54505 (M.D. Ala. June 26, 2009)

This unpublished district court opinion addresses two frequent issues in claim denial cases – whether 29 U.S.C. 1132(a)(3) remedies available when (a)(2) claims may have been brought and whether equitable estoppel may apply in an ERISA case.

One of the several unfortunate aspects of 29 U.S.C. 1132(a)(3) often complained about from a policy perspective is the notion that it is unavailable if a claim for benefit case could have been brought instead under (a)(2).  That, coupled with ERISA’s broad preemption of state law and limited equitable remedies even when (a)(3) does apply, limits claimants to a narrow channel of relief.

As Tebbetts illustrates, despite serious consequences of a claim denial, a frequent outcome will be the shunting of the claim back to a simple claim fo benefits case where the argument is simply over the  cost of the denied procedure.  In other words, the contours of a claim for benefits case under (a)(2) define the scope of relief under (a)(3), regardless of how the claims are actually brought.

For example, the Tebbitts court reasoned that:

Congress intended this provision [[1132(a)(3)]to be a “catchall” that would act “as a safety net, offering appropriate equitable relief for injuries caused by violations that § 502 does not elsewhere adequately remedy.” Varity Corp. v. Howe, 516 U.S. 489, 512, 116 S. Ct. 1065, 134 L. Ed. 2d 130 (1996). This provision authorizes some individualized claims for breach of fiduciary duty, but under precedents handed down by the Eleventh Circuit Court of Appeals, not where plaintiffs had a cause of action based on the same allegations under § 1132(a)(1)(B) or ERISA’s other more specific remedial provisions. See, e.g., Jones v. Am. Gen. Life & Accident Ins. Co., 370 F.3d 1065, 1073-74 (11th Cir.), reh’g denied, 116 Fed. Appx. 254 (11th Cir. 2004); Ogden v. Blue Bell Creameries U.S.A., Inc., 348 F.3d 1284, 1286-88 (11th Cir. 2003); Katz v. Comprehensive Plan of Group Ins., ALLTEL, 197 F.3d 1084, 1088-89 (11th Cir. 1999)  [*11] reh’g denied 209 F.3d 726 (11th Cir. 2000). Accord, Nolte v. BellSouth Corp., No. 1:06-cv-762-WSD, 2007 U.S. Dist. LEXIS 2108, 2007 WL 120842, *3-*7 (N.D. Ga. Jan. 11, 2007).

In light of these cases, it is clear that this Court must determine whether the allegations supporting the § 1132(a)(3) claim were also sufficient to state a cause of action under § 1132(a)(1)(B), regardless of the relief sought. 370 F.3d at 1073. Thus, the fact that Plaintiffs have recast the relief they seek from claims for damages into claims for equitable relief, the Court must focus on whether the factual predicate for their claim could have supported a cause of action under § 1132(a)(1)(B).

The court determined that the plaintiffs could have paid for the scan themselves and filed a claim for benefits.  So, the court reasoned, the plaintiffs just had a garden variety claim denial case under (a)(2).

In the case at hand, it is plain that all of Plaintiffs’ complaints against Defendants arise out of a denial of coverage for a CT scan. Upon that denial, Plaintiffs could have paid for the test themselves and then sought reimbursement through a § 1132(a)(1)(B) action or file such an action seeking a preliminary injunction. They could have filed  suit pursuant to § 1132(a)(1)(B) seeking clarification of their rights to future benefits under the terms of the plan. Plaintiffs elected not to pursue their remedies under § 1132(a)(1)(B), but the remedies were available to them. Because Plaintiffs had an adequate remedy under § 1132(a)(1)(B), they cannot assert a § 1132(a)(3) claim even if their § 1132(a)(1)(B) has been lost. See Ogden, 348 F.3d at 1287; Katz, 197 F.3d at 1089. Thus, Plaintiffs’ claim pursuant to § 1132(a)(3) is due to be DISMISSED.

As I mentioned at the outset, the plaintiffs did have an estoppel argument.  It did not fare any better, however.  The opinion really does not provide much for evaluation of this claim and that may be because there simply weren’t sufficient facts to allege a well-rounded ERISA claim.  At least, that is what the court found, stating:

Defendants contend that Count Two of the Amended Complaint must be dismissed because Plaintiffs have failed to sufficiently plead the necessary facts to support a claim for equitable estoppel. Plaintiffs make no response in opposition to this contention. “This circuit has created a very narrow common law doctrine under ERISA for equitable estoppel.” Katz, 197 F.3d at 1090 (citing Glass v. United of Omaha Life Ins. Co., 33 F.3d 1341, 1347 (11th Cir. 1994) and Kane v. Aetna Life Ins., 893 F.2d 1283, 1285-86 (11th Cir.), cert. denied, 498 U.S. 890, 111 S. Ct. 232, 112 L. Ed. 2d 192 (1990)). Such a claim for equitable estoppel under ERISA is “only available when (1) the provisions of the plan  at issue are ambiguous, and (2) representations are made which constitute an oral interpretation of the ambiguity.” Id.

Having reviewed the Amended Complaint, the Court cannot find that Plaintiffs have alleged enough facts to state a claim of equitable estoppel under ERISA to show that relief that is plausible on this claim and they have certainly not presented a complaint which on its face provides the grounds of their entitlement to relief on this claim. Accordingly, the motions to dismiss are due to be GRANTED as to Count Two of the Complaint.

Note:   The plaintiff originally challenged the application of ERISA to the plan, but the court held otherwise.  The coverage was under the “Medical Association of the State of Alabama Group Health Care Plan” which the plaintiff argued was not an employee benefit plan within the meaning of ERISA.   (“The MASA policy was issued by Defendant Blue Cross Blue Shield (“Blue Cross”) and administered in part by Defendant CareCore National, LLC “).  That was actually a good strategic angle though unavailing on these facts.
Eleventh Circuit On (a)(3) – From Jones v. Am. Gen. Life & Accident Ins. Co., 370 F.3d 1065 (11th Cir. Ga. 2004), relied upon by the district court:
As we recently explained in  Ogden v. Blue Bell Creameries U.S.A., Inc., 348 F.3d 1284 (11th Cir. 2003), and as Varity itself makes clear, “the central focus of the Varity inquiry involves whether Congress has provided an adequate remedy . . . elsewhere in the ERISA statutory framework.”  Id. at 1288 (internal quotations omitted) (emphasis added); see also  Varity, 516 U.S. at 515, 116 S. Ct. at 1079 (stating inquiry as whether “Congress elsewhere provided adequate relief for a beneficiary’s injury”) (emphasis added). Thus, for purposes of establishing whether the Appellants had stated a claim under Section 502(a)(3), the district court should have considered whether the allegations supporting the Section 502(a)(3) claim were also sufficient to state a cause of action under Section 502(a)(1)(B), regardless of the relief sought, and irrespective of  the Appellants’ allegations supporting their other claims.