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KEYS v. EASTMAN KODAK CO.

June 7, 1990

ALBERT LOUIS KEYS, INDIVIDUALLY, AND AS EXECUTOR OF THE ESTATE OF ALBERT KEYS, PLAINTIFF,
v.
EASTMAN KODAK COMPANY, KODAK RETIREMENT INCOME PLAN, AND KODAK RETIREMENT INCOME PLAN COMMITTEE, DEFENDANTS.



The opinion of the court was delivered by: Larimer, District Judge.

MEMORANDUM DECISION AND ORDER

BACKGROUND

At the time of his death, plaintiff's father, Albert Keys, had been an employee of the Eastman Kodak Company for 42 years, and was a participant in the Kodak Retirement Income Plan (KRIP). The Kodak Retirement Income Plan Committee (KRIPCO) administers the plan.

In February of 1988, Albert Keys suffered a massive stroke that left him brain damaged, unable to work or conduct his affairs, and able only to speak a few words at a time with great effort. Following an unsuccessful attempt to obtain information over the telephone regarding his father's health, life, savings and pension benefits, plaintiff visited the Kodak Employee Benefits Office on February 29, 1988 in order to obtain this information.

Although plaintiff purported to act on his father's behalf, Kodak refused to disclose specific information regarding Keys' benefits because plaintiff had not been appointed his father's conservator, nor did he possess a written power of attorney. In fact, prior to his visit to Kodak, plaintiff had commenced proceedings to be appointed conservator of his father's affairs.

At the conclusion of plaintiff's visit, however, Kodak did provide him with a copy of a pamphlet entitled "You and Kodak," which contained the summary description of KRIP that must be furnished to plan participants and beneficiaries under ERISA. Plaintiff alleges that this document fails sufficiently to apprise the average reader of the participant's rights and obligations under the plan.

Approximately two months after his visit to Kodak, on April 22, 1988, plaintiff was appointed his father's conservator.

There is no explanation for the delay by plaintiff and no reason is given for the failure to obtain a simple power of attorney. There is no evidence in the record that plaintiff could not have obtained a power of attorney from his father if his father had in fact directed him to obtain information from Kodak. Physical incapacity would not prevent one from validly executing a power of attorney by making a "mark" or by signing with the assistance of another. Cf. Re Irving's Will, 153 App. Div. 728, 138 N.Y.S. 784 (1912), aff'd 207 N.Y. 765, 101 N.E. 1106 (1913) (execution of will); Re Surak's Will, 48 N.Y.S.2d 400 (1944) (same).

After plaintiff's appointment as conservator, he returned to the Kodak Employee Benefits Office on April 26, at which time he allegedly was first informed that some of his father's pension benefits could be payable to a third-party as designated by the employee. While normally Kodak pension benefits are payable as a "straight-life" annuity to the plan participant (i.e., the employee), KRIP allows the participant to elect to have Kodak pay him a reduced pension, with the balance payable to a designated beneficiary, called the "contingent annuitant," following the participant's death.

It is also claimed that plaintiff learned then for the first time that to be effective, the written election to have benefits paid on this basis must be filed at least 180 days before the participant's death.

Consequently, plaintiff filed a written election on his father's behalf on April 28, 1988, designating himself as contingent annuitant. Unfortunately, Albert Keys died 171 days later, on October 17, 1988. Because Keys died fewer than 180 days after plaintiff filed the written election, Kodak denied plaintiff's request for benefits, which would have amounted to approximately $809 per month.


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