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July 15, 1991


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


This is an action for survivor's benefits brought by the widow of a retired seaman in which she seeks declaratory and injunctive relief and damages for violations of the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. § 1001 et seq. Plaintiff moved for summary judgment on the complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants cross-moved for summary judgment. The parties have consented to a final determination of the merits of this action on the record now before the Court in lieu of trial. For the reasons set forth below, judgment is entered for plaintiff.


The facts of this case are summarized in Larsen v. NMU Pension Trust of the NMU Pension & Welfare Plan, 902 F.2d 1069 (2d Cir. 1990), reversing the district court's grant of summary judgment to defendants and remanding. Briefly, when plaintiff's late husband ("the decedent"), a seaman, applied for his NMU pension in September 1977, he applied for a disability pension, adding the notation "OR HIGHEST $$AVAILABLE." Joint Exh. 5. At that time he also executed a written waiver of a "Husband and Wife Pension," sometimes designated an "Employee and Spouse Pension." Under that option, the decedent would have received a lower monthly pension during his lifetime but plaintiff, upon his death, would have automatically received monthly payments of 50% of the decedent's monthly pension for the remainder of her life. Instead, decedent received monthly payments in the amount of $327.93 until his death on July 12, 1980. Because the NMU plan guaranteed "Five-Year Certain Benefits" regardless of when the retiree died, plaintiff, as decedent's beneficiary, received an additional 26 monthly payments in the same amount. The payments to plaintiff ended September 1, 1982.

The NMU Husband and Wife Pension option became effective January 1, 1976, prior to the decedent's retirement. Articles describing the Husband and Wife Pension appeared in the February 1976 and April 1976 issues of the NMU Pilot, decedent's union newspaper.*fn1 Plaintiff has stipulated decedent brought home copies of the NMU Pilot. [Joint] Stipulations of Fact dated Oct. 4, 1988 ¶ 31.

Plaintiff claims that material misrepresentations made to decedent at the time he filled out his pension application caused the decedent to execute the waiver and therefore the waiver was not knowing and voluntary. The amended complaint states two causes of action: denial of survivor's benefits in violation of § 205 of ERISA, 29 U.S.C. § 1055, and breach of fiduciary duty in violation of § 404 of ERISA, 29 U.S.C. § 1104, by reason of failure to comply with statutory and administrative notice requirements. Plaintiff seeks an award of lifetime survivor's benefits retroactive to the date of her husband's death.

On October 4, 1988 the parties agreed to Stipulations of Fact and Joint Exhibits. On that basis, the district court, in an unpublished memorandum decision dated January 17, 1989, granted defendant's original motion for summary judgment and denied plaintiff's motion for summary judgment. Plaintiff appealed. After oral argument before the Second Circuit but prior to decision, the parties amended ¶ 11 of the joint Stipulations of Fact to state:

  At the time Mr. Larsen retired, an Employee and
  Spouse Pension was available to disability
  retirees, but then Pension Supervisor, Mr. Robert
  Meyer, advised disability pension applicants
  otherwise. However, Mr. Meyer has no specific
  recollection of what he may or may not have said
  to Mr. Larsen.

Based on the amended stipulation, the Second Circuit held:

  Since Mr. Larsen apparently selected the [Husband
  and Wife Pension] Option at the outset, but then
  reversed that election, a genuine issue of
  material fact exists as to whether the conceded
  misrepresentation by the Plan's representative
  induced Mr. Larsen's ultimate decision.

Larsen, 902 F.2d at 1073. The Second Circuit remanded, giving the parties an opportunity to present additional evidence in light of the post-argument amendment of the stipulations of fact. Id. The parties stipulated to the following additional facts on December 10, 1990: (1) Joint Exhibit 3 entitled "Notice of New Death Benefit Protection for Active Seamen Who Have Attained Age 55 and Are Eligible for a Pension" was mailed to all eligible seamen reaching age 55 within two years of February 1976 for whom the Plan had a mailing address, including decedent; (2) decedent applied for his pension eight days after achieving full pension eligibility; (3) on October 11, 1977 NMU determined that the highest available pension payable to decedent was an "age," e.g., non-disability, pension of $327.93 per month; (4) decedent never submitted evidence of medical disability that would qualify him for a disability pension; and (5) if decedent had elected the Husband and Wife Pension, the amount payable to him with an age pension would have been $295.13 per month with $147.56 payable for life to plaintiff upon his death, whereas with a disability pension the amount payable to decedent would have been $205.00 per month with $102.50 payable to plaintiff for life.


NMU's Husband and Wife Pension is a "qualified joint and survivor annuity" under ERISA. At the time decedent applied ...

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