United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion for
Partial Dismissal and to Strike [Docket No. 10]. The Court
has jurisdiction pursuant to 28 U.S.C. § 1331.
case arises out of defendant's denial of plaintiff's
claim for long-term disability benefits. Plaintiff worked for
Valley View Hospital as a Professional Billing Director from
1989 to 2001 and from 2007 to 2016. Docket No. 1 at 2,
¶¶ 8-9. On April 13, 2016, she left her employment
with the hospital when she was no longer able to perform the
duties of her position. Id., ¶ 9.
her employment, plaintiff was a participant in the Valley
View Hospital Group Disability Plan (the “Plan”).
Id., ¶¶ 11-12. The Plan included a Group
Disability Income Policy, which provided long term disability
benefits to eligible employees of Valley View Hospital.
Id., ¶ 13. Defendant was the claim
administrator of the Plan as well as the insurer and
underwriter of the long term disability policy. Id.
at 3, ¶¶ 17-18. Under the terms of the policy,
defendant was required to pay plaintiff 60% of her basic
monthly earnings in the event that she became disabled while
the Plan was in effect. Id. at 2, ¶ 14.
August 2015, plaintiff underwent surgery for a tear in her
right rotator cuff and for carpal tunnel in her right hand.
Id. at 3, ¶ 20. Although plaintiff initially
returned to work on a limited basis, it became clear by
December 2015 that her right hand was not healing properly.
Id. at 3-4, ¶¶ 21-22. Despite follow-up
surgery, the effects of the two surgeries and the nerve
damage in plaintiff's hand became so severe that she
could no longer perform her job. Id., ¶ 26.
Plaintiff's treating physicians certified that she had
permanent restrictions preventing her from performing
full-time work. Id., ¶ 27. After leaving her
job on April 13, 2016, plaintiff applied for long term
disability benefits under defendant's long term
disability policy. Id., ¶¶ 27-28.
Plaintiff informed defendant that she was unable to perform
her own occupation because she could not use her right hand
without pain and had little sensation in two of her fingers
and her thumb. Id., ¶ 28. On August 31, 2016,
defendant informed plaintiff that she did not qualify as
being disabled under the policy and was therefore ineligible
for long term disability benefits. Id., ¶ 29.
In reaching that determination, defendant failed to consider
the nerve damage underlying plaintiff's disability claim.
Id., ¶ 30. In addition, defendant's August
31, 2016 letter “misled [plaintiff] regarding the
information she needed to submit with her internal appeal and
failed to explain what [plaintiff] needed to do to
‘perfect' her appeal.” Id. at 5,
submitted an internal appeal of her disability claim on
September 7, 2016. Id., ¶ 35. In response to
the appeal, defendant hired an orthopedic surgeon to review
plaintiff's medical records. Id., ¶ 36. The
surgeon concluded, based on plaintiff's records, that
there was “clear documentation of median nerve
deficits” and that certain restrictions were
appropriate. Id., ¶ 37. On August 5, 2016,
defendant upheld the denial of plaintiff's disability
claim. Id. at 6, ¶ 39.
filed this lawsuit on July 25, 2017, asserting two claims
under the Employment Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et
seq.: (1) a claim under section 502(a)(1)(B), 29 U.S.C.
§ 1132(a)(1)(B), for benefits owed under the terms of
defendant's long term disability policy; and (2) a claim
under section 502(a)(3), 29 U.S.C. § 1132(a)(3), for
breach of fiduciary duties. Id. On September 5,
2017, defendant filed a motion to dismiss plaintiff's
breach of fiduciary duty claim under Fed.R.Civ.P. 12(b)(6).
Docket No. 10. Plaintiff filed a response to the motion
on September 27, 2017, Docket No. 22, to which defendant
replied on October 10, 2017. Docket No. 24. Since the parties
completed briefing on the motion to dismiss, they have filed
several notices of supplemental authority. See
Docket Nos. 43, 45, 47, 48, 57. The Court will consider these
supplemental filings along with the parties' briefs in
resolving defendant's motion to dismiss.
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a complaint must allege
enough factual matter that, taken as true, makes the
plaintiff's “claim to relief . . . plausible on its
face.” Khalik v. United Air Lines, 671 F.3d
1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not shown-that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (internal quotation marks and alteration marks
omitted); see also Khalik, 671 F.3d at 1190
(“A plaintiff must nudge [his] claims across the line
from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)).
If a complaint's allegations are “so general that
they encompass a wide swath of conduct, much of it innocent,
” then plaintiff has not stated a plausible claim.
Khalik, 671 F.3d at 1191 (quotations omitted). Thus,
even though modern rules of pleading are somewhat forgiving,
“a complaint still must contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008) (alteration marks omitted).
moves to dismiss plaintiff's breach of fiduciary duty
claim on the ground that plaintiff's first claim for
relief, which is brought under 29 U.S.C. §
1132(a)(1)(B), provides the exclusive remedy for the improper
denial of her disability benefits. Docket No. 10 at 2.
1132 of Title 29 prescribes ERISA's civil enforcement
scheme. Two provisions of that scheme are relevant here.
Section 1132(a)(1)(B) authorizes a participant or beneficiary
of an insurance plan governed by ERISA to bring a civil
action “to recover benefits due to him under the terms
of his plan, to enforce his rights under the terms of the
plan, or to clarify his rights to future benefits under the
terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).
Section 1132(a)(3) permits a participant, beneficiary, or
fiduciary of an ERISA benefits plan to bring a civil action
“(A) to enjoin any act or practice which violates any
provision of this subchapter or the terms of the plan, or (B)
to obtain other appropriate equitable relief (i) to redress
such violations or (ii) to enforce any provisions of this
subchapter.” Id., §
1132(a)(3). In Varity Corp. v. Howe, 516 U.S.
489 (1996), the Supreme Court explained that §
1132(a)(1)(B) “focus[es] upon [a] specific area,
” providing a “remedy for breaches of fiduciary
duty with respect to the interpretation of plan documents and
the payment of claims, ” while § 1132(a)(3) is a
“catchall” provision that affords
“‘appropriate equitable relief' for
‘any' statutory violation.” Id. at
512. In other words, § 1132(a)(3) “act[s] as a
safety net . . . for injuries caused by violations that
[§ 1132] does not elsewhere adequately remedy.”
Id. The Supreme Court further cautioned, however,
that “where Congress elsewhere provided adequate relief
for a beneficiary's injury, ” additional equitable
relief under § 1132(a)(3) “normally would not be
‘appropriate.'” Id. at 515.
Tenth Circuit has interpreted Varity as authorizing
dismissal of a § 1132(a)(3) claim when a
denial-of-benefits claim under § 1132(a)(1)(B) affords
adequate relief. In Lefler v. United Healthcare of Utah,
Inc., 72 Fed.Appx. 818 (10th Cir. 2003) (unpublished),
the Tenth Circuit affirmed the district court's grant of
summary judgment in favor of the defendant on the
plaintiffs' § 1132(a)(3) claim, stating that
“consideration of a claim under [that provision] is
improper when [a plaintiff] states a cognizable claim under
[§ 1132(a)(1)(B)].” Id. at 826. Although
Lefler does not mandate the dismissal of parallel
§ 1132(a)(3) claims at the pleadings stage, district
courts in this Circuit have relied on Varity and
Lefler to dismiss § 1132(a)(3) claims that are
duplicative of denial-of-benefits claims under §
1132(a)(1)(B). See, e.g., Sliwinski v. Aetna
Life Ins. Co., No. 17-cv-01528-RM-MEH, 2017 WL 4616599,
at *7 (D. Colo. Oct. 16, 2017) (report and recommendation
adopted) (dismissing breach of fiduciary claim where wrongful
denial of benefits claim afforded adequate relief);
Holbrooks v. Sun Life Assurance Co. of Canada, 2012
WL 2449850, at *2 (D. Kan. June 26, 2012) (finding that
relief under § 1132(a)(3) was not authorized because
plaintiff had asserted a colorable claim under §
1132(a)(1)(B)); see also Moore v. Berg Enter., Inc.,
201 F.3d 448, 1999 WL 1063823, *2 n.2 (10th Cir. 1999)
(unpublished table decision) (relying on Varity to
hold that, “under the undisputed circumstances of th[e]
case, [the plaintiff was] not entitled to repackage his
denial of benefits ...