The opinion of the court was delivered by: PLATT
The plaintiff, Adrian Fase, is suing the defendants, Seafarers Welfare and Pension Plan ("the Plan") and various officers and trustees of the Plan, for withholding pension benefits from the plaintiff. The defendants counterclaim against the plaintiff for return of benefits already paid.
The defendants move pursuant to Rule 12 of the Federal Rules of Civil Procedure to dismiss plaintiff's action, or, alternatively, pursuant to Rule 56 for summary judgment. The plaintiff cross-moves for summary judgment on his claim and on the defendants' counterclaim.
Fase is a former merchant mariner and a participant in the Plan because of his membership in the Seafarers International Union of North America.
On November 22, 1971 Mr. Fase applied for disability benefits under the Plan because he had been declared permanently unfit for sea duty as a result of arthritic pain. He was advised that under Article I, Section 4(a) of the Plan, an employee who was eligible for disability benefits under Social Security would only be eligible for benefits under the Plan when his disability had been determined by the Social Security Administration. Article I, Section 4(a), reads in relevant part as follows:
"The Trustees, on the basis of medical evidence, shall be the sole and final judge of total and permanent disability and entitlement to a Disability Pension provided, however, that if an employee is covered by the Social Security Act or the Railroad Retirement Act and is eligible for a disability pension benefit under either of these Acts, he must apply for the disability pension benefit provided by said Act, and the Trustees shall be bound by the determination of the Social Security Administration or the Railroad Retirement Board as to such employee's total and permanent disability."
Pursuant to that provision the plaintiff applied for Social Security disability benefits in November, 1971. That application was originally denied by the Social Security Administration, but after an exhaustion of appeals within the Administration and after review and remand by a district court, the plaintiff was finally declared eligible for disability benefits on August 8, 1974. On that date the Social Security Administration declared that the plaintiff had been disabled on July 12, 1971 and thus awarded him retroactive social security payments from that date and prospective payments for the future.
In January of 1975 the plaintiff submitted to the Trustees of the Plan a copy social security benefits check, and accordingly the Trustee approved his application for benefits under the Plan on January 22, 1975. However, pursuant to Article III, Section I(B) of the Plan, which is quoted below, the Trustees started payments of benefits on February 1, 1975.
"(B) Payment of Disability Pension Benefits shall commence on the first day of the calendar month next following the later of the following dates:
(a) The date of receipt by the applicant of his final Sickness and Accident Benefit payment from the Seafarers' Welfare Plan, and
(b) The date on which the application for a Disability Pension Benefit is approved by the Trustees."
Finally, the plaintiff did receive Sickness and Accident Benefits under the Plan during the period from November 1971 through July 1972.
On these facts the plaintiff originally sued for disability benefits from the time he applied for them on November 22, 1971 until the defendants started paying him on February 1, 1975. However, the plaintiff concedes on pages 43-44 of its Memorandum that "while plaintiff claims to have been eligible for benefits as of November 22, 1971, he does not dispute that the defendants may postpone commencement of payment until August 1, 1972, the ...