management of such plan or exercises any authority or control respecting management or disposition of its assets . . . or . . . has any discretionary authority or discretionary responsibility in the administration of such plan." 29 U.S.C. § 1002(21)(A). ERISA also provides that every employee benefit plan "shall provide for one or more named fiduciaries who jointly or severally shall have authority to control and manage the operation and administration of the plan." 29 U.S.C. § 1102(a)(1). The "named fiduciary" is a fiduciary who is named in the plan instrument.
Gitano is the "Named Fiduciary" in the Plan, and EBP is the Third Party Administrator. Under the Plan, the "Third Party Administrator," referred to as the "Plan Supervisor," in the version of the Plan plaintiff contends is controlling, is the "person/organization providing consulting services to [Gitano] in connection with the operation of This Plan and performing such other functions, including processing and payment of claims, as may be delegated to it." On the other hand, the "Fiduciary" is the "person or organization that has the authority to control and manage the operation and administration of the Plan. The Fiduciary has discretionary authority to determine eligibility for benefits or to construe the terms of This Plan." As noted above, Gitano is the named fiduciary. Furthermore, under the Plan appeals of denied claims are to be made to Gitano for review. Thus, while the Plan confers discretionary authority on Gitano, it does not confer discretionary authority on EBP. Indeed, EBP denies that it exercises discretionary authority in determining whether to accept or reject claims or in the administration or management of the Plan.
To support his contention that EBP is a fiduciary, plaintiff relies primarily on the fact that EBP currently is processing certain of plaintiff's medical claims at issue in this case. In this respect, plaintiff states: "One only has to examine the interrogatory answer . . . which recites that $ 74,000 of claims are currently under review." Affidavit of Thomas McManus, at 4. However, this evidence does not demonstrate that EBP exercises discretion or is authorized to exercise discretion in the reviewing process. EBP readily admits that it processes claims, but it maintains that it does so in accordance with the terms of the Plan as established by Gitano, and is neither authorized to exercise discretion nor does it in fact exercise discretion in considering claims.
A review of the record demonstrates that the evidence is not sufficient to support a finding that EBP exercises discretionary authority in the consideration of claims, in particular, respecting the approval or denial of plaintiff's claims for medical benefits in connection with his bone marrow transplant and subsequent treatment. Rather, it appears that EBP merely processes claims within the framework of policies, rules and procedures established by Gitano, and has done so respecting plaintiff's claims for medical benefits. See Kyle Rys. v. Pacific Admin. Servs., Inc., 990 F.2d 513, 516 (9th Cir. 1993); Gelardi, 761 F.2d at 1325; see also 29 C.F.R. § 2509.75-8 (person who processes claims for an employee benefits plan within a framework of policies, interpretations, rules, practices and procedures made by other persons is not a fiduciary). Accordingly, plaintiff cannot maintain a claim for breach of fiduciary duty against EBP.
In the alternative, plaintiff seeks to assert a claim against EBP for "knowing participation" in a breach of fiduciary duty, raised in its proposed amended complaint and supplemental affidavit. Even considering these submissions, and assuming such a claim is permitted, see Mertens v. Hewitt Assocs., 124 L. Ed. 2d 161, 113 S. Ct. 2063 (1993) (expressing doubt that right of action exists under ERISA for knowing participation in an ERISA-fiduciary's breach of duty, but assumed for purpose of decision that it does under § 1132(a)(3)); Lee, 991 F.2d at 1008, 1010 (citing Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270 (2d Cir. 1992)) (recognizing claim under federal common law), the evidence is also insufficient to support a claim that EBP, a non-fiduciary, "knowingly participated" in any breach of fiduciary duty by a plan fiduciary. In any event, plaintiff would not be able to recover benefits for himself based on such a claim, since any relief for knowing participation in breach of fiduciary duty would run to the plan and not to individual beneficiaries. See Lee, 991 F.2d at 1009-10 & n.6; cf. Smith, 786 F. Supp. at 304-05.
Lastly, the evidence is not sufficient to support a claim against EBP based on equitable estoppel, see Lee, 991 F.2d at 1009, for allegedly failing to inform plaintiff or John Hopkins Hospital of the cap prior to the transplant procedure.
For the reasons above, defendant EBP's motion for summary judgment is granted, and the complaint and amended complaint are dismissed as against EBP.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
May 4, 1994