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November 4, 2002


The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge



This is an action pursuant to the Employee Income Retirement Security Act (ERISA) 29 U.S.C. § 1001 et seq. The following motions are now before the Court: 1) a motion [#79] by defendants ENI, Inc. Long Term Disability Plan ("the Plan") and ENI Technology, Inc. ("ENI"), to dismiss plaintiff's Second Amended Complaint; and 2) a motion [#86] by defendant First Reliance Standard Life Insurance Company ("First Reliance") for summary judgment against plaintiff and for dismissal of the cross-claim by ENI pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons that follow, the motion by ENI and the Plan is denied in its entirety, and First Reliance's motion is denied as to plaintiff but granted as to ENI. Moreover, plaintiff is granted summary judgment as to liability only on her first cause of action, and is granted summary judgment on her second, third, and fourth causes of action.


It is well settled that in determining a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for "failure to state a claim upon which relief can be granted," a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). The Court "may dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (internal quotations omitted)(citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

If, on a motion to dismiss, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." FED. R. CIV. P. 12(c).

The standard for granting summary judgment is also well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). Once that burden has been established, the burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Id. at 249. The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).

Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993).

While in the instant case, plaintiff did not file a cross-motion for summary judgment, it is well settled that

summary judgment may be rendered in favor of the opposing party even though he has made no formal cross-motion under Rule 56. A motion for summary judgment searches the record. If undisputed facts are found which, when applied to the law, indicate that judgment against the moving party is appropriate, Rule 56(c) will operate to grant summary judgment in favor of the non-moving party.

Dempsey v. Town of Brighton, 749 F. Supp. 1215, 1220 (W.D.N.Y. 1990) (citations omitted), affirmed sub. nom Curenton v. Town of Brighton, 940 F.2d 648 (2d Cir. 1991), cert denied, 502 U.S. 925 (1991).


Defendant ENI Technology, Inc. is the sponsor of an employee welfare benefit plan to provide disability insurance for its employees. In that regard, ENI contracted with defendant First Reliance Standard Life Insurance Company to provide long-term disability benefits to the Plan's participants. Plaintiff Terry R. Sunderlin is an employee of ENI and a participant in the Plan. In November 1995, plaintiff became disabled and began receiving disability benefits. In June 1996, plaintiff returned to work at ENI on a part-time basis. On May 25, 1999, First Reliance denied plaintiff any further benefits. At the suggestion of her doctor, plaintiff then retained an attorney and sought to appeal the denial of benefits by First Reliance. Before filing an appeal, plaintiff's counsel requested, on June 30, 1999 and August 10, 1999, that First Reliance provide him with certain Plan documents, but First Reliance did not.

On July 22, 1999, First Reliance informed plaintiff's counsel that the Plan administrator was Linda Almekinder, an employee of ENI. On July 27, 1999, plaintiff's counsel wrote to Ms. Almekinder, requesting a copy of the Summary Plan Description ("SPD"). This letter was returned, with a notation that Ms. Almekinder no longer worked at ENI. On July 27, 1999, plaintiff's counsel again wrote to ENI, requesting a copy of the SPD. Plaintiff's letter expressly stated that it was a "request for a copy of the Plan's Summary Plan Description." (Perticone Affidavit, Exhibit 2). On August 9, 1999, ENI sent plaintiff's counsel a copy of the disability insurance policy issued by First Reliance. The insurance policy is the only document which plaintiff ever received in response to her request for a summary plan description.

On August 25, 1999, plaintiff filed an appeal with First Reliance. Under the terms of the policy, First Reliance was required to render a decision within 60 days. (Amended Complaint [#36], ¶ 24). However, First Reliance never issued a decision. On November 23, 1999, plaintiff again requested that First Reliance provide Plan documents. On December 15, 1999, First Reliance sent plaintiff an incomplete copy of the disability insurance policy issued to ENI. Subsequently, on February 16, 2001, counsel for First Reliance wrote to plaintiff's counsel and stated: "With respect to the plan summary, the employer used the certificate booklet prepared by First Reliance as the summary plan description. The booklet is in storage and will be provided when it is retrieved." (Hulslander Letter dated 2/16/01). First Reliance has never produced such a booklet.

On June 6, 2000, plaintiff commenced this action. Plaintiff's initial complaint named First Reliance and an insurance policy, but not the Plan, as defendants. Subsequently, plaintiff filed an Amended Complaint [#36], which named both First Reliance and the Plan as defendants, and alleged four causes of action. The first was against First Reliance "for violation of 29 U.S.C. § 1132(a)(1)(B) to recover benefits due Plaintiff under the terms of her plan." (Amended Complaint [#36], p. 4). Plaintiff alleged that First Reliance wrongfully denied her benefits "from April 10, 1999 through the present." (Id., ¶ 32). The second cause of action alleged that First Reliance violated 29 U.S.C. § 1132(c) by failing and refusing to provide her with the Plan information she had requested. The third cause of action sought an injunction against the Plan, pursuant to 29 U.S.C. § 1132(a)(3)(A), on the grounds that it "has a demonstrated history of administering its claims procedure in a way which is unreasonable and in willful violation of the minimal protections provided by ERISA." The fourth cause of action sought a declaratory judgment, pursuant to 29 U.S.C. § 1132(a)(1)(b), clarifying plaintiff's rights to future benefits. Specifically, she sought a determination that she was entitled to receive long-term disability benefits under the Plan "until the end of the maximum benefits period, March 26, 2022, provided that she remains disabled and meets all other provisions of the group policy." (Id., ¶ 53). The Amended Complaint also demanded costs and attorneys' fees.

First Reliance and the Plan moved for summary judgment. In connection with these motions, the parties appeared before the undersigned on March 7, 2002. At that time, First Reliance indicated that it had lost plaintiff's claim file, and had therefore decided to resume making payments under the disability policy.*fn1 First Reliance stated it had tendered a check to plaintiff for the full amount of back payments owed to her, in the amount of $28,062.50. First Reliance admitted that it had previously miscalculated the amount owed as being only $23,000. Plaintiff's counsel indicated that he did not understand how First Reliance had calculated the amount of back payment, and, as to the front payments, stated that First Reliance was deducting monies from plaintiff's monthly checks without explanation.

During that same court appearance, the Court asked plaintiff what she demanded to settle the action, and she requested: 1) that First Reliance arrange to have a Certified Public Accountant certify that the dollar amounts First Reliance was proposing to pay were accurate under the terms of the policy; 2) that plaintiff be provided with a SPD; 3) 50% of the maximum discretionary penalty under 29 U.S.C. § 1132(c)(1)(B) for failing to provide the SPD; 4) that First Reliance create a claim file for plaintiff, and continue to pay her benefits for as long as she remained entitled to receive them; 5) a corrected W-2 statement; and 6) disbursements of approximately $1,700. Plaintiff finally indicated that if First Reliance would comply with demands 1, 4, and 5 above, that she would settle the action as to First Reliance, and First Reliance agreed to meet those demands. (Id., pp. 32, 39-40). The Court then directed counsel for plaintiff and First Reliance to submit a settlement agreement within 30 days. (Id. p. 40). As to the remaining claims against the Plan, the Plan maintained that it had sent plaintiff a "booklet," which had all the information required of a summary plan description pursuant to 29 U.S.C. § 1022. Despite plaintiff's counsel's insistence that all he had received was an insurance policy, counsel for the Plan and ENI steadfastly maintained that what ENI had sent to plaintiff was a "certificate booklet," not the insurance policy. (Transcript of 3/7/02 appearance, pp. 16-17). After reviewing the document, the Court stated that what plaintiff received was an insurance policy, not a booklet. (Id. at 18). The Court further noted, "I think it's fair to say that for a long time plaintiff has been misled by who was the plan administrator and who wasn't." (Id. at 22). Nonetheless, the Plan maintained that it had complied with plaintiff's demand for an SPD, and was therefore entitled to judgment as a matter of law. The parties then agreed that plaintiff would file a second amended complaint, adding a cause of action against ENI, the sponsor and administrator of the plan, for its failure to provide her with the SPD. (Id., pp. 40-41).*fn2 It was further agreed that ENI would then file a motion to dismiss the second amended complaint, which the Court would convert to a motion for summary judgment.

On April 11, 2002, counsel for First Reliance wrote to the Court regarding the status of settlement negotiations with the plaintiff. First Reliance's counsel, Mr. Hulslander, indicated that First Reliance had provided plaintiff with a certification by a CPA, and with a corrected W-2 statement. However, he indicated that plaintiff's counsel had increased his demand to include payment for the cost of serving the summons and complaint, and attorneys' fees. First Reliance's counsel indicated that First Reliance was willing to pay the cost of service if plaintiff would give up her demand for attorneys' fees. As an aside, the Court does not understand ...

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