United States District Court, N.D. Alabama, Southern Division
As Amended June 19, 2014.
For Karen Criss, Plaintiff: Gregory J McKay, BURKE HARVEY & FRANKOWSKI LLC, Birmingham, AL; Peter H Burke, BURKE HARVEY LLC, Birmingham, AL.
For Union Security Insurance Company, Defendant: Christopher L Yeilding, Jason B Tompkins, BALCH & BINGHAM LLP, Birmingham, AL.
MEMORANDUM OPINION AND ORDER
WILLIAM M. ACKER, JR., UNITED STATES DISTRICT JUDGE.
This court devoutly wishes that the Supreme Court of the United States had not blindly stumbled off on the wrong foot and in the wrong direction when it handed down Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the case in which it invented a strange quasi-administrative regime for court review of denials of ERISA benefits claims. It inexplicably substituted a procedure borrowed from administrative law for the clear congressional mandate
that the filing of a " civil action" (a simple, straightforward, garden-variety suit for breach of contract) is the only means for challenging such denial decisions. In the amicus curiae brief filed by the Solicitor General in Bruch, he did his best to keep the Supreme Court from wandering off track and ignoring Congress. The Solicitor General, who was representing both Congress and the persons whom Congress intended to benefit from ERISA, failed to talk the Supreme Court out of its misguided step, a misstep that has led to a series of further judicial glosses, distillations, penumbras, and emanations, eventuating in the sad state of affairs now faced by ERISA claimants and by the courts who have to deal with ERISA benefits claims.
If Congress itself had enacted the weird scheme created by the Bruch court out of whole cloth, ERISA would have been promptly and successfully attacked for its patent unconstitutionality as a violation of " due process" . A quick application of the universally recognized legal maxim, nemo judex in causa sua, would have kept any such statute off the statute books. Chief Justice Sir Edward Coke in Dr. Bonham's Case, 8 Co. Rep. 107a, 77 Eng. Rep. 638 (C.P. 1610), carved in granite for all time this fundamental jurisprudential principle when he said, using the vernacular: " No man should be a judge in his own case."
The justices of the Supreme Court, including some who decided Bruch, routinely recuse themselves when there is even the slightest hint of any possible self-interest by the recusing justice. And yet, today, clearly conflicted ERISA plan administrators and insurers, when granted by the plan document that they drafted full discretion to interpret their plans and to decide the ultimate issue of entitlement, are routinely allowed, even required, to rule on their own cases. Not surprisingly, this court has not found a single case in which an insurance company has recused itself in an ERISA case under the rule of nemo judex in causa sua. There is no scheme remotely like the one created by Bruch in the annals of Anglo-American jurisprudence. Chief Justice Coke is uncomfortable in his crypt.
While in the above three paragraphs this court has been indulging in wishful thinking, the court is now brought back to earth by the knowledge that it cannot alter or ignore the actual state of ERISA jurisprudence, as it has evolved from Bruch. Especially, this court cannot alter or ignore what the Eleventh Circuit has done to produce its own sui generis brand of fruit from the poisoned tree.
In Brown v. Blue Cross & Blue Shield of Alabama, Inc., 898 F.2d 1556 (1990), the Eleventh Circuit acknowledged the binding effect of the Bruch -created " arbitrary and capricious" standard for reviewing the decisions of ERISA decision-makers who have granted themselves Bruch discretion. But, in Brown, the Eleventh Circuit also recognized that the Bruch regime could lead to the Frankenstein that it has come to be. The Eleventh Circuit issued its warning to itself and to others, in the following remarkable, but unmistakable language:
Because we have restated the standard as arbitrary and capricious, the temptation exists to consult precedent regarding the use of that standard to review administrative agency decisions. See e.g., Jett, 890 F.2d at 1141-42 (Johnson. J., concurring and dissenting) (citing and quoting from Motor Vehicle Mfrs. Ass'n v. State Farm Auto Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). In some instances an overlap is evident. Compare, e.g., id. (extracting duty to
investigate from Motor Vehicle Mfrs. Ass'n) with Jader, 723 F.Supp. at 1342-43; Slover, 714 F.Supp. at 832-33; Teeter v. Supplemental Pension Plan, 705 F.Supp. 1089, 1095 (E.D. Pa.1989) (fiduciary has affirmative duty to gather information bearing on beneficiary's claim that is reasonably obtainable). We express caution, however, at wholesale importation of administrative agency concepts into the review of ERISA fiduciary decisions. Use of the administrative agency analogy may, ironically, give too much deference to ERISA fiduciaries. Decisions in the ERISA context involve the interpretation of contractual entitlements; they " are not discretionary in the sense, familiar from administrative law, of decisions that make policy under a broad grant of delegated powers." Van Boxel, 836 F.2d at 1050. Moreover, the individuals who occupy the position of ERISA fiduciaries are less well-insulated from outside pressures than are decisionmakers at government agencies. See Maggard, 671 F.2d at 571. We therefore concentrate on the common law trust principles to evaluate the application of the arbitrary and capricious standard. Of course, the common law we consider includes the cases decided under the Labor Management Relations Act. See, e.g., Sharron v. Amalgamated Ins. Agency Servs., Inc., 704 F.2d 562 (11th Cir.1983) (decided under LMRA, not ERISA, but subsequently applied to ERISA situations).
Brown, 898 F.2d at 1564 n.7. This ominous footnote did not slow down the Eleventh Circuit in its march toward achieving the reputation as the circuit court of appeals least likely to rule against a plan administrator or an insurer.
In response to Bruch, an increasing number of states have adopted a statute or insurance industry rule that precludes the inclusion of the so-called " discretionary clause" in a disability insurance policy. These states have wisely slipped the embrace of Bruch and have accomplished in their states what Congress intended, namely, trials de novo for beneficiaries after they have been denied and unsuccessfully exhausted their internal plan remedies. Alabama, Georgia, and Florida have not seen fit to take advantage of this means for escaping Bruch. Meanwhile, the Eleventh Circuit has created its " six-step" analysis, which puts plan administrators and insurers firmly in the driver's seat, and invites them to sit in judgment on their own denial decisions, and to ignore, as if meaningless, their fiduciary obligations of strict loyalty to their plan beneficiaries.
So, What About the Above-Captioned Case?
Plaintiff, Karen Criss (" Criss" or " plaintiff" ), brings this action seeking benefits she claims are owed her under a long-term disability insurance plan provided by her employer, HeartSouth Cardiovascular Group (" HeartSouth" ), and insured by defendant, Union Security Insurance Company (" Union Security" or " defendant" ). Before the court are cross-motions for summary judgment  and supporting memoranda. This court has in earlier opinions made known its belief that Rule 56 does not fit ERISA cases as long as Bruch
provides the method for review, but this court " goes along to get along."
Plaintiff is 57 years old. From January, 2003 to February, 2008, she worked as a financial clerk for HeartSouth. R. at 139. As part of her employment package, she was insured under the disability insurance policy that is at issue in the instant action and that covered physicians, administrators, and clerks. Id.
As early as 1993, Criss was diagnosed with fibromyalgia, a disorder of unknown cause that causes widespread and severe pain, fatigue, sleep loss, and mood swings. R. at 502. Criss's medical records deal mostly with treatment she received after 2006. These records reflect that she saw no fewer than six doctors in 2006 and 2007 for her fibromyalgia and other medical conditions, including neuropathy (a disease similar to fibromyalgia that involves general pain and weakness in the extremities). The doctors achieved only partial success in treating Criss's various ailments by increasing or reducing her medications. See, e.g., R. at 1107. A November, 2007 doctor's report noted that " [s]he has quit all vitamins, anti-depressants, Synthroid in the last 3 weeks and now 'I feel better than I have before'" . Id. But, her above-mentioned symptoms were never eliminated or ameliorated to the point of a release from pain or from treatment.
On an afternoon in February, 2008, Criss suddenly left work in the middle of the day in what would turn out to be a permanent departure. A claims agent for Union Security interviewed her in the following month and summarized what she found as follows:
There was an incident and build up of exhausting her self [sic] at work, new computer system at work, not sufficient training, they had to stop what they were doing, go out to the internet and get the training as they needed, she couldn't get the training she needed, " hands on" kind of person, she couldn't understand these foreigner people that she couldn't understand, she had deadlines, she had a panic attack, she felt she was going to explode, she ran into her bosses [sic] office, she told the boss she had to go and she ran out of the building.
R. at 1090. Criss tried to return to work, but upon doing so, she had " panic attacks, [would] break out in hot sweat, her chest [would have a] screw where the screwdriver keeps tightening it up to about 100 pound weight, [and] she [would have] palpitations . . . ." Id.
In the wake of what can only be described as a nervous breakdown, Criss continued to see her treating doctors, and added a host of new doctors, both for treatment and for evaluation of her possible disability status. These medical consultations included partial hospitalization in an " Intensive Outpatient Program," during which she was treated for " major depression, panic attacks and work stress." R. at 1016. She continued to receive treatment for her pain-related illnesses such as fibromyalgia and neuropathy. See, e.g., R. at 779-80 (April 2008 treatment notes indicating " very symptomatic" fibromyalgia).
Criss filed her disability claim with Union Security in April, 2008, citing " anxiety, panic disorder, depression, severe pain, fibromyalgia, neuropathy, [and] carpal tunnel." R. at 1096 (emphasis added). Defendant happily approved the claim, and began paying Criss benefits. R. at 165-69. However, defendant explained in its approval letter that Criss was required to file a disability claim with the Social Security Administration (" SSA" ), so ...