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SCARSO v. BRIKS

December 22, 1995

Bronwyn J. Scarso, Plaintiff, against Harold J. Briks, Harold J. Briks D.C. P.C and Briks Chiropractic Center, Defendants.


The opinion of the court was delivered by: PARKER

 FINDINGS OF FACT

 Defendant Harold Briks ("Briks") is the principal of defendant Harold J. Briks and Harold J. Briks D.C.P.C. which is doing business as Briks Chiropractic Center. Scarso worked for Briks as a chiropractic assistant from September 1981 through May, 1993. In 1982, Briks established and started contributing toward a discretionary pension plan ("the Plan") in which Briks, his wife, and Scarso were all beneficiaries. *fn1" Briks stopped contributing to the Plan in 1986.

 The Plan was initially funded through First Investors Life Insurance Company ("First Investors") with the purchase of multiple insurance policies and annuities, of which an unknown portion was to benefit Scarso. Between 1984 and 1986, all pension investments at First Investors were terminated. Upon termination, First Investors issued Briks a total of four checks *fn2" : one dated July 11, 1984 in the amount of $ 3,839.18; another dated August 24, 1984 in the amount of $ 14,144.17; another dated April 28, 1986 in the amount of $ 2,850.36; and another dated June 25, 1986 in the amount of $ 5,579.80, totalling $ 26,413.51. As for the August 24, 1984 check, there was testimony that Scarso's accrued pension benefits included $ 2,910.75. As for the April 28, 1986 check, there was testimony that $ 294.71 was allocable to Scarso. It was not established how much money from the July 11, 1984 and the June 25, 1986 checks was allocable to Scarso.

 Additionally, the plan included a life insurance policy at Banker's Life Insurance Company of New York for Scarso's benefit. As of May 31, 1993, the Banker's Life Policy was valued at $ 1,500.79. *fn3"

 Finally, the plan also included a money market fund at First Trust Corporation ("First Trust"). One statement dated April 1993 - June 30, 1993 indicates that the pension benefits were valued at $ 443.69. The amount owed Scarso, however, was not established.

 On May 23, 1993, Scarso's last day of work, Scarso asked Briks for her vacation pay and her pension. *fn4" According to Scarso's testimony, which we credit, Briks responded that he would send it, and that Scarso "knew [he was] good for it." When Scarso did not receive the funds, she called Briks's office and reminded Mrs. Briks to send the funds. Mrs. Briks responded, "no problem. We will send it." On August 1, 1994, Scarso's attorney sent a written demand to defendants for document stating the terms of the pension plan, the summary plan description all plan amendments, terminal reports and statements of plaintiff's accrued pension benefits. Briks did not respond. In January 1995, Scarso commenced this action seeking to enforce her rights under ERISA. On July 7th 1995, Briks provided Scarso with scant information regarding the plan. At trial, Briks testified that his accountant Anthony Rivero, disappeared in 1986 and took the pension documents with him. *fn5" Briks did not, however, report the theft to the police *fn6" , the Internal Revenue Service or a financial institution. *fn7"

 CONCLUSIONS OF LAW

 Scarso's complaint alleges various violations of ERISA. Jurisdiction is predicated on Section 502 of ERISA.

 Unpaid Benefits

 Scarso's claim is brought under ERISA § 502 (a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), which provides plan participants with an express private cause of action to recover benefits under an ERISA plan. ERISA does not provide an express standard of review for courts to apply in a benefits dispute under § 502(a)(1)(B). In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989), the Supreme Court held that the language of the plan determines the standard of review. If the plan grants no discretion to the administrator or fiduciary to construe its terms, a de novo standard applies. Firestone, 489 U.S. at 110-12. If the administrator or fiduciary has discretion to construe plan provisions, an arbitrary or capricious standard of review applies. Firestone, 489 U.S. at 111.

 Here, although no plan has been produced, under either standard, Briks's continuing refusal to pay Scarso violates the statute. See Blau v. Del Monte Corp, 748 F.2d 1348 (9th Cir. 1985). Accordingly, Briks owes Scarso the following in unpaid benefits: $ 3,205.46 from the First Investors Account; $ 1,500.79 from the Banker's Life Account and $ 443.69 from the First Trust Account. Additionally, Briks owes Scarso an award of prejudgment interest. See Dependahl v. Falstaff ...


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