The opinion of the court was delivered by: Larimer, District Judge.
MEMORANDUM DECISION AND ORDER
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
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.