to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioners: The Murphy Law Firm Brian A.
Murphy, Adam B. Kehrli, Wheat Ridge, Colorado
Attorneys for Respondents: Holland & Hart LLP Michael S.
Beaver Greenwood Village, Colorado
¶1 Caroline Burton and Brenda Olivar submitted claims
for long-term disability benefits to insurance companies
under employee-benefits plans set up by their employers
("the Plans"). Both Burton's and Olivar's
employers created the Plans by purchasing long-term
disability policies from insurance companies. The insurance
companies denied Burton's and Olivar's claims. Burton
and Olivar sued the Plans under the Employee Retirement
Income Security Act ("ERISA"), 29 U.S.C. §
1132(a)(1)(B) (2016), for benefits due to them under the
insurance policies. But neither served the Plans. Rather,
they each served complaints on the United States Department
of Labor Secretary, relying on an ERISA provision allowing
such service when a plan hasn't designated "an
individual" as an agent for service of process.
Id. § 1132(d)(1). In both cases, the Labor
Secretary never forwarded the complaint to the Plans'
designated agents for service of process, the Plans failed to
answer, and Burton and Olivar obtained default judgments in
Eventually, the Plans moved to set aside the default
judgments for improper service, which the trial courts
granted in both cases. Later, the Plans moved for summary
judgment, arguing the insurers, which were obligated to make
all eligibility determinations and payments under the
Plans' terms, were the only proper party defendants. The
trial courts agreed, granting the Plans summary judgment. A
division of the court of appeals affirmed.
In this opinion, we consider whether ERISA §
1132(d)(1)'s use of "individual" provides that
service on the Labor Secretary is sufficient when an
employee-benefit plan designates a corporation (instead of a
natural person) as its administrator and agent for service of
process. We think not. We hold "individual" in this
context includes a corporation and service on the Labor
Secretary is proper only when a plan fails to designate
either a plan administrator or some other person as agent for
service of process. We further hold that judgments void for
lack of service may be set aside at any time. Finally, we
address which party is the proper defendant in an ERISA claim
for benefits due. We hold the insurer, not the Plan, is the
only proper defendant in an ERISA claim for benefits due when
the Plan's terms provide that only the insurer is
obligated to pay and to determine eligibility for benefits.
¶4 Accordingly, we affirm.
Facts and Procedural History
The Burton and Olivar cases concern ERISA claims for benefits
filed against their employee-benefit plans under ERISA's
civil-enforcement provision, 29 U.S.C. § 1132(a)(1)(B).
And though the facts of these cases are quite similar,
clarity we discuss them separately here.
Facts in Burton v. Colorado Access
Caroline Burton's former employer, Colorado Access,
offered an ERISA-governed plan that it created by purchasing
a long-term disability insurance policy issued and
administered by Unum Life Insurance Company of America
("Unum"). The policy was the Plan's governing
instrument, and the summary plan description designated
Colorado Access as the plan administrator and agent for
service of process.
Burton collected disability benefits under the plan for
almost two years before Unum terminated her benefits. After
exhausting administrative remedies for Unum's
benefits-denial decision, Burton filed a complaint in May
2007 against the Colorado Access Plan ("CA Plan")
for benefits due under the long-term disability policy. 29
U.S.C. § 1132(a)(1)(B) (allowing beneficiaries to sue
for benefits due under plans governed by ERISA). But she
didn't serve Colorado Access the complaint. Rather, she
served the complaint only on the United States Department of
Labor Secretary ("Labor Secretary"), reasoning such
service was proper under § 1132(d)(1).
The Labor Secretary didn't forward the complaint to
Colorado Access, so the CA Plan failed to file an answer.
Thus, Burton sought and obtained a default judgment in May
2008 against the CA Plan for back benefits and interest, a
monthly payment until Burton turned 65, and attorney fees.
Over four years after the trial court entered the default
judgment, the CA Plan filed a motion to set aside and vacate
the judgment under C.R.C.P. 60(b)(3). Because Burton failed
to serve Colorado Access the complaint, it argued the trial
court lacked personal jurisdiction over the CA Plan when
entering judgment, which rendered the default judgment void.
The trial court agreed and vacated the judgment.
The CA Plan then moved for summary judgment, reasoning that
because Unum alone determined eligibility and was obligated
to pay benefits under the plan's terms, only Unum could
be held liable under § 1132(a)(1)(B). To support its
motion, the CA Plan attached the Unum insurance policy and an
affidavit from Colorado Access's Vice President of
Administrative Services and Corporate Compliance Officer.
Both documents confirmed the following: the CA Plan's
only governing document was the insurance policy; any
benefits approved were paid only by Unum; and the CA Plan
played no role in determining or paying benefits.
The trial court granted the CA Plan summary judgment, finding
it wasn't liable for any benefits Unum decided not to pay
because the plan document didn't require the CA Plan to
pay benefits or to determine eligibility for benefits. Burton
appealed, arguing the trial court erred as follows: (1) that
it improperly set aside the default judgment because service
on the Labor Secretary was proper under § 1132(d)(1);
and (2) that it erred in granting summary judgment because
the CA Plan was liable to pay Burton benefits due under
A division of the court of appeals affirmed. In a published,
unanimous opinion, it concluded the following: (1) the trial
court correctly set aside the default judgment, because
service on the Labor Secretary under § 1132(d)(1) is
proper only where the summary plan description fails to
designate either a plan administrator or some other person as
an agent for service of process; and (2) the trial court
correctly granted the CA Plan summary judgment because it was
not a proper defendant to Burton's ERISA benefits claim.
Facts in Olivar v. Public Service Employee Credit Union
Brenda Olivar's former employer, Public Service Employee
Credit Union ("PSCU"), offered an ERISA-governed
plan that it created by purchasing a long-term disability
insurance policy issued and administered by Standard
Insurance Company ("Standard"). The policy was the
Plan's governing instrument. The summary plan description
under the policy designated PSCU as the plan administrator
and listed the agent for service of process as "Plan
Administrator." The summary plan description also
required additional notice of legal process involving
benefits claims be sent to Standard.
After a car accident and a separate incident in which she
fell down some stairs, Olivar submitted a claim to Standard
for disability insurance benefits, which it denied. Olivar
appealed, exhausting all administrative remedies for
benefits. After losing, she sued the Public Service Employee
Credit Union Plan ("PSCU Plan") for benefits due
under ERISA § 1132(a)(1)(B). Like Burton, Olivar
didn't serve PSCU the complaint- instead, she served only
the Labor Secretary, also relying on § 1132(d)(1). The
Labor Secretary didn't forward the complaint, so the PSCU
Plan never answered and the trial court eventually entered a
default judgment against it. In 2011, the trial court ordered
PSCU to pay the default judgment amount as garnishee, so PSCU
paid Olivar back benefits and began making monthly payments
About two years later (and over six years after the trial
court entered the default judgment), the PSCU Plan filed a
motion to set aside and vacate the default judgment against
it as void under C.R.C.P. 60(b)(3) due to improper service of
process. The trial court agreed and set aside the default
judgment. Olivar then submitted a motion to reconsider
setting aside the default judgment, which the trial court
The PSCU Plan moved for summary judgment, raising essentially
the same arguments as the CA Plan in Burton's case. The
PSCU Plan also submitted the Standard insurance policy and an
affidavit from PSCU's Senior Vice President and Chief
Operating Officer. Both documents confirmed the following:
the PSCU Plan's only governing document was the insurance
policy; any benefits approved were paid only by Standard; and
the PSCU Plan played no role in determining or paying
The trial court granted the PSCU Plan summary judgment, and
Olivar appealed, raising the same issues Burton raised in her
appeal. Relying largely on the division's analysis in
Burton v. Colorado Access, 2015 COA 111,
¶¶ 25-35, P.3d, a different division of the court
of appeals affirmed the trial court in Olivar's case.
Burton and Olivar petitioned this court for writs of