United States District Court, D. Colorado
MICHAEL D. ELLIS, Plaintiff,
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, a New Hampshire corporation, Defendant.
MEMORANDUM OPINION AND ORDER
T. BABCOCK, JUDGE
ERISA case is before me on Plaintiff Michael D. Ellis's
Motion for Reconsideration/Amendment of Judgment under
Fed.R.Civ.P. 59 and/or for Relief From Order Pursuant to Rule
60 [Doc #68]. In its response to Mr. Ellis's motion,
Defendant Liberty Life Assurance Company of Boston
(“Liberty”) moved to strike an exhibit attached
to Mr. Ellis's motion [Doc #70]. After consideration of
the parties' briefs, the record, and the case file, and
for the reasons set forth below, I grant Mr.
motion; deny Liberty's motion to strike; vacate the
judgment entered in this case in favor of Liberty; and enter
judgment in favor of Mr. Ellis.
Memorandum Opinion and Order dated September 18, 2018 [Doc #
66] (the “Order”), I entered judgment in favor of
Liberty on Mr. Ellis's claim that Liberty wrongfully
terminated his long term disability benefits under
Liberty's Group Disability Income Policy
GF3-830-502315-01 (the “Policy”). In analyzing
Mr. Ellis's claim, I applied an arbitrary and capricious
standard of review after determining that the Policy
provision giving Liberty discretionary authority to construe
the terms of the Policy and determine benefits eligibility
was not void pursuant to C.R.S. § 10-3-1116(2) which
prohibits such discretionary provisions. By his motion, Mr.
Ellis, represented by new counsel, again argues that §
10-3-1116(2) is applicable in this case and that his benefits
claim is therefore subject to de novo review. Mr. Ellis
further argues that de novo review dictates that judgment be
entered in his favor on his claim for continuing long term
disability benefits under the Policy.
Standard of Review
conclusion that § 10-3-1116(2) was not retroactively
applicable to the Policy was predicated on the fact that the
Policy was issued in 2005, prior to the enactment of
§10-3-1116(2) in 2008. In reaching this conclusion, I
considered Mr. Ellis's argument that the 2005 issuance
date was not determinative because relevant events, including
renewals and amendments to the Policy and the assertion and
processing of his disability claim, occurred after 2008.
again arguing that 2005 is not the determinative date in
analyzing the applicability of §10-3-1116(2), Mr. Ellis
focuses on amendments to the Policy which he made cursory
reference to in his original briefing and a Summary Plan
Description (“SPD”) for Comcast's Disability
Plan that was not part of the administrative record. With
respect to amendments, Mr. Ellis cites footers on several
pages of the Policy to demonstrate that portions of the
Policy were amended subsequent to the 2005 issuance date,
most notably in 2011. See Doc # 52, pp. 16, 17, 18,
21, 22, 31 & 32. The cited pages do not include the
General Provisions section of the Policy which contains the
discretionary authority provision that Liberty relies on for
application of an arbitrary and capricious standard of
review. In fact, this section of the Policy does not
reference any effective date, either 2005 or any subsequent
year. See Doc # 52, pp. 41-5. Liberty, however,
bears the burden of establishing that the arbitrary and
capricious standard of review is applicable in this case.
LaAsmar v. Phelps Dodge Corp. Life, Accidental Death
& Dismemberment and Dependent Life Ins. Plan, 605
F.3d 789, 796 (10th Cir. 2010).
has failed to provide any evidence to rebut Mr. Ellis's
argument that the Policy has been amended several times.
Liberty has also failed to cite any legal authority to rebut
Mr. Ellis's argument that these amendments take this case
out of the purview of Johnson v. Life Ins. Co. of North
Amer., 2017 WL 1154027 at *11-*13 (D. Colo. Mar. 28,
2017) and Mustain-Wood v. Nw. Mut. Life Ins. Co.,
938 F.Supp.2d 1081, 1084-85 (D. Colo. 2013), which informed
my analysis of the retroactivity of § 10-3-1116(2) in
the Order. Since both Johnson and
Mustain-Wood dealt solely with policy renewals, I no
longer find them persuasive authority for my analysis of this
addition, the SPD submitted by Mr. Ellis with his motion
provides as follows:
This [Plan] is effective January 1, 2011 and is established
by [Comcast] to provide both short-term disability and
long-term disability benefits to its eligible employees. It
is the successor plan to the previously maintained Short-Term
Disability Plan and Long-Term Disability Plan.
See Ex. 1 to Motion, p.2. Liberty argues that I
should not even consider the SPD because it was not part of
the administrative record before the Court. As Mr. Ellis
points out, however, Liberty was responsible for compiling
the administrative record to be reviewed by the Court
(see Doc #70, p.2) and owed a fiduciary duty to him
to ensure that he received any benefits to which he was
entitled. See Gaither v. Aetna Life Ins.
Co., 394 F.3d 792, 807-08 (10th Cir. 2004). Asking the
Court not to consider information known to it that is
relevant to Mr. Ellis's claim for long term disability
runs counter to the duty that Liberty owes Mr. Ellis. I
therefore reject Liberty's request that I strike the SPD
also argues that it should not be bound by the SPD since it
was prepared and issued by Comcast. Clearly though, the SPD
and the Policy are related. See Exhibit 1 to Motion,
p. 2 (“... benefits which are insured are provided
through a contract of insurance...”). Furthermore, Mr.
Ellis's claim for long term disability benefits arises
out of his participation in Comcast's Disability Plan
which, per the SPD, went into effect in 2011, or ...