Case 9:20-cv-80545-KAM Document 40 Entered on FLSD Docket 01/04/2021 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 20-80545-CIV-MARRA
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`SHARON PROLOW, on behalf of herself
`and all others similarly situated,
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`Plaintiff,
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`vs.
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`AETNA LIFE INSURANCE COMPANY
`and AETNA, INC.,
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`Defendants.
`_____________________________________/
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`OPINION AND ORDER
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`This cause is before the Court upon Defendants’ Motion to Dismiss Plaintiff’s Complaint
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`(DE 7) and Defendants’ Motion to Stay Discovery (DE 23). The Motions are fully briefed and
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`ripe for review. The Court held a hearing on the Motion to Dismiss on November 17, 2020. The
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`Court has carefully considered the Motions and is otherwise fully advised in the premises.
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`I. Background
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`Plaintiff Sharon Prolow, on behalf of herself and all others similarly situated, brings a
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`four-count Complaint (DE 1) against Defendants Aetna Life Insurance Company (“ALIC”) and
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`Aetna, Inc.1 (“Aenta”) (collectively, “Defendants”) alleging violations of fiduciary obligations
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`pursuant to 29 U.S.C. § 1132(a)(3) (count one); improper denial of benefits pursuant to 29
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`1 The Complaint alleges that Aetna, Inc. is the parent company of Aetna Life Insurance Company. (Compl. ¶ 8.)
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`U.S.C. § 1132(a)(1)(B) (count two); a claim for appropriate equitable relief (count three) and a
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`claim for statutory damages (count four). 2
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`This class action Complaint is brought on behalf of beneficiaries of ERISA3 plans.
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`Plaintiff alleges that the plans are administered by Defendants, and that she and other similarly
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`situated beneficiaries of the plans were wrongfully denied Proton Beam Radiation Therapy
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`(“PBRT”), a treatment for breast cancer, due to Defendants’ policy of denying this treatment as
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`experimental or investigational. (Compl. ¶ 1.)
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`According to the Complaint, Defendants are ERISA fiduciaries. (Compl. ¶ 77.)
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`Defendants allegedly violated their fiduciary duties “by adopting and implementing a policy to
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`deny coverage for PBRT.” (Id. at ¶ 79.) Due to the breach of fiduciary duty, Defendants were
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`unjustly enriched, and Plaintiff seeks appropriate equitable relief. (Id. at ¶ ¶ 94-95.)
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`Defendants move to dismiss the Complaint on the following grounds: (1) counts I and III
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`are brought pursuant to 29 U.S.C. § 1132(a)(3) which cannot be pled when a plaintiff’s injury
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`would be adequately remedied under 29 U.S.C. § 1132(a)(1)(B); (2) count III is not a
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`freestanding claim but a remedy and (3) the Complaint is a shotgun pleading which
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`impermissibly lumps the two defendants together.
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`Plaintiff responds that (1) the 29 U.S.C. § 1132(a)(3) claim for breach of fiduciary duty
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`can proceed alongside her claim for wrongful denial of benefits under 29 U.S.C. §
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`1132(a)(1)(B); (2) the breach of fiduciary duty claim is adequately pled; (3) the remedies in
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`count III are available under ERISA and (4) the Complaint is not a shotgun pleading.
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`2 In response to the motion to dismiss, Plaintiff seeks to voluntarily dismiss count four. (Resp. at 3 n.1.) It is,
`however, procedurally improper to attempt to dismiss voluntarily less than all of a party’s claims in an action. Klay
`v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004). The proper procedure is to amend the complaint
`to eliminate the claim. Id.
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` 3
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` ERISA is shorthand for the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq.
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`2
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` II. Legal Standard
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`Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement
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`of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme
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`Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
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`need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his
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`‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the
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`elements of a cause of action will not do. Factual allegations must be enough to raise a right to
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`relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
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`(internal citations omitted).
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`"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
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`accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.
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`Ct. 1937, 1949 (2009) (quotations and citations omitted). "A claim has facial plausibility when
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`the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged." Id. Thus, "only a complaint that states a
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`plausible claim for relief survives a motion to dismiss." Id. at 1950. When considering a motion
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`to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a
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`plaintiff has stated a claim for which relief could be granted.
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`III. Discussion
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`The first question this Court must revolve is whether Plaintiff’s claims for “violation of
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`fiduciary obligations” (count I) and “other appropriate equitable relief” (count three) pursuant to
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`29 U.S.C. § 1132(a)(3) (hereinafter, “section 1132(a)(3)”) may proceed alongside Plaintiff’s
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`claim for wrongful denial of benefits pursuant to 29 U.S.C. § 1132(a)(1)(B) (hereinafter, “section
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`1132(a)(1)(B)”).
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`3
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`Section 1132(a)(1)(B) allows an ERISA-plan beneficiary to bring a civil action “to
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`recover benefits due to him under the terms of his plan, to enforce his rights under the terms of
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`the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. §
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`1132(a)(1)(B). In contrast, section 1132(a)(3) allows an ERISA-plan beneficiary to bring a civil
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`action to “(A) to enjoin any act or practice which violates any provision of this subchapter or the
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`terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations
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`or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U.S.C. §
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`1132(a)(3).
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`In Varity v. Howe, 516 U.S. 489 (1996), the United States Supreme Court held that
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`section 1132(a)(3) serves as a safety net to offer appropriate equitable relief for violations that
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`section 1132(a)(1)(B) does not sufficiently remedy. Id. at 512. Following Varity, the Eleventh
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`Circuit Court of Appeals in Katz v. Comprehensive Plan of Grp. Ins., 197 F.3d 1084 (11th Cir.
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`1999), held that a plaintiff could not bring a claim under section 1132(a)(3) when she had an
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`adequate remedy under section 1132(a)(1)(B), even if the plaintiff lost on the merits of that
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`claim. Id. at 1088-90.
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`Next, in Jones v. Am. Gen. Life & Accident Ins. Co., 370 F.3d 1065 (11th Cir. 2004), the
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`court addressed a group life insurance benefit provided to the plaintiff employees. Id. at 1067.
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`The group life insurance benefit provided by the original employer allowed employees who
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`stayed with the employer until retirement to retain the group life insurance benefit after
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`retirement at company expense. Id. The successor employer, however, informed these
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`employees that it was terminating the retiree group life benefit. Id. at 1068. The plaintiffs sought
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`relief under ERISA for breach of contract, equitable estoppel, and breach of fiduciary duty. Id.
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`The breach of contract and equitable estoppel claims sought reinstatement of the plan. Id. With
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`4
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`respect to the breach of fiduciary duty claim, the plaintiffs alleged that they relied on the
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`defendant’s misrepresentations to their detriment in making financial plans for themselves and
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`their families. Id. at 1072. The defendant moved to dismiss this claim, arguing that the breach of
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`fiduciary duty claim was only cognizable under section 1132(a)(3), and that pursuant to Katz, the
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`plaintiffs were not entitled to section 1132(a)(3) relief because section 1132(a)(1)(B) afforded
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`them an adequate remedy. Id. The district court agreed and dismissed the breach of fiduciary
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`duty claim based on Varity and Katz. Id. Later, at summary judgment, the district court
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`dismissed the plaintiffs’ remaining claims. Id.
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`With respect to the section 1132(a)(1)(B) claim, the Eleventh Circuit found that the
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`district court did not err in granting summary judgment to the employer because the plan was
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`unambiguous, causing the breach of contract and equitable estoppel claims to fail. Id. at 1071.
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`Addressing the district court’s dismissal of the breach of fiduciary claim4 under section
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`1132(a)(3), the Eleventh Circuit noted that the plaintiffs pled this claim in the alternative. Id.
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`The Eleventh Circuit then stated that the district court misapplied Varity and Katz, and
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`ought to have considered whether the allegations supporting the section 1132(a)(3) claim were
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`enough to state a cause of action under section 1132(a)(1)(B), regardless of the relief sought. Id.
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`at 1073-74. The Eleventh Circuit explained that “the relevant concern in Varity, in considering
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`whether the plaintiffs had stated a claim under [section 1132](a)(3), was whether the plaintiffs
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`also had a cause of action, based on the same allegations under [section 1132](a)(1)(B) or
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`ERISA's other more specific remedial provisions.” Id. at 1073. In Jones, because the plaintiffs'
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`breach of fiduciary duty claim was premised upon different allegations of misconduct than their
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`claim for benefits, the plaintiffs should have been permitted to plead the breach of fiduciary duty
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`4 This claim alleged that the defendants engaged in a pattern of misrepresentation that caused the plaintiffs to believe
`their insurance benefit would not be changed during their retirement. Id.
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`5
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`claim as an alternative to the claim for benefits. Id. at 1073-74. Put another way, plaintiffs who
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`“rely to their detriment on a fiduciary’s misrepresentations of the plan’s terms may state a claim
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`for ‘appropriate equitable relief’ under section 1132(a)(3) if they have no adequate remedy
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`elsewhere in ERISA’s statutory framework.” Id. at 1074.
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`In 2011, the United States Supreme Court ruled in CIGNA Corp. v. Amara, 563 U.S. 421
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`(2011) that the phrase “other appropriate equitable relief” in section 1132(a)(3) authorized
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`district courts to reform pension plan terms and enforce the reformed terms. Id. at 438-39. When
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`fiduciaries made incorrect or misleading communications about plan changes, the Amara Court
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`found reformation appropriate. Id. at 440-41. Also appropriate were the equitable remedies of
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`estoppel and surcharge under section 1132(a)(3). Id. at 439-43. The facts of Amara were like
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`those in Jones, in that the employees filed a class action against their employer and pension plan
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`for the employer’s conversion into a less favorable retirement plan. Id. at 424. Also significant
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`was the finding that section 1132(a)(3) could remedy a “loss” incurred by the plaintiffs. Id. at
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`441 (“Equity courts possessed the power to provide relief in the form of monetary
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`‘compensation’ for a loss resulting from a trustee's breach of duty, or to prevent the trustee's
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`unjust enrichment.”) (emphasis added). The Amara court was careful to explain that the ability
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`to obtain a surcharge as a monetary remedy only comes into play only when there has been a
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`“loss” or where the plan beneficiary can prove “actual harm.” Id. at 441-42, 444.
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`Since Amara, most circuit courts have permitted plaintiffs to pursue claims seeking relief
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`under both sections 1132(a)(1)(B) and (a)(3). See Jones v. Aetna Life Ins. Co., 856 F.3d 541,
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`547 (8th Cir. 2017) (“so long as two claims ‘assert different theories of liability,’ plan
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`beneficiaries ‘may plead both.’”); Moyle v. Liberty Mut. Retirement Ben. Plan, 823 F.3d 948,
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`961 (9th Cir. 2016) (allowing claims under section 1132(a)(1)(B) and (a)(3) “as alternative—
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`6
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`rather than duplicative—theories of liability”); New York State Psychiatric Ass'n, Inc. v.
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`UnitedHealth Grp., 798 F.3d 125 (2d Cir. 2015) (reversing district court for dismissing breach of
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`fiduciary duty claim under section 1132(a)(3)); Kenseth v. Dean Health Plan, Inc., 722 F.3d
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`869, 883 (7th Cir. 2013) (“if the plaintiff is able to demonstrate a breach of fiduciary duty . . .
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`and show that the breach caused her damages, [the plaintiff] may seek an appropriate equitable
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`remedy including make-whole relief in the form of money damages.”); McCravy v. Metropolitan
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`Life Insurance Co., 690 F.3d 176, 178-81 (4th Cir. 2012) (equitable remedies providing a
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`monetary award are available under § 1132(a)(3), but a plaintiff may not simultaneously recover
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`under § 1132(a)(1)(B) and § 1132(a)(3) for the same injury); but see Innova Hosp. San Antonio,
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`Ltd. P'ship v. Blue Cross & Blue Shield of Georgia, Inc., 892 F.3d 719, 734 (5th Cir. 2018)
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`(when the plaintiff has an adequate mechanism for redress under section 1132(a)(1)(B), the
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`plaintiff may not simultaneously plead claims under section 1132(a)(3)).
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`The most recent case from the Eleventh Circuit is Williamson v. Travelport, 953 F.3d
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`1278 (11th Cir. 2020). The Williamson plaintiffs sued a successor company for alleged
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`shortchanging of pension benefits. Id. at 1284. Specifically, the class plaintiffs sought “1) a
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`declaratory judgment under § 1132(a)(1)(B) that their pension benefits were calculated
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`incorrectly; (2) damages under § 1132(a)(1)(B) for pension benefits wrongly withheld based on
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`the allegedly improper calculations; (3) a finding that the defendants breached their fiduciary
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`duties under ERISA; and (4) attorney's fees and prejudgment interest under § 1132(g). [The
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`named plaintiff] also sought, under § 1132(c) and on her behalf only, penalties for the
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`defendants' alleged failure to give her documents that ERISA requires administrators to provide
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`within 30 days upon written request.” Id. at 1287. As it relates to the present case, the Eleventh
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`Circuit ruled that the named plaintiff stated a plausible claim for benefits under section
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`7
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`1132(a)(1)(B). Id. at 1291. With respect to the equitable relief sought under section 1132(a)(3),
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`the court noted that the named plaintiff did not specify the relief sought, but to the extent she was
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`seeking a recalculation of her benefits, she had an available remedy under § 1132(a)(1)(B), and
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`therefore could not assert a claim under § 1132(a)(3).5 Id. at 1297. Additionally, the court in
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`Williamson explained that the named plaintiff could not obtain compensatory damages for the
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`alleged breach of fiduciary duty under § 1132(a)(3), noting that “such a legal remedy is not
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`available under section 1132(a)(3).” Id. at 1298. Thus, although Williamson did not address
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`directly whether a plaintiff could plead alternative claims under both sections 1132(a)(1)(B) and
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`(a)(3), Williamson did state that there was no need for further equitable relief when the plaintiff
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`already had a cause of action based on the same allegations under § 1132(a)(1)(B), and that a
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`plaintiff could not seek compensatory damages for an alleged breach of fiduciary duty under
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`§ 1132(a)(3).6
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`Based on the foregoing, the Court concludes that Plaintiff may plead claims under both
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`sections 1132(a)(1)(B) and 1132(a)(3), if she pleads them in the alternative under different
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`theories of liability.7 If Plaintiff seeks a claim for benefits pursuant to § 1132(a)(1)(B), the claim
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`5 Notably, the Eleventh Circuit did not discuss or cite the Amara case.
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` 6
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` For this reason, the Court rejects Plaintiff’s argument that there would have been an equitable claim available
`under section 1132(a)(3) had the Williamson plaintiff specified one.
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` 7
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` In seeking dismissal of the Complaint, Defendants rely on Gardi v. United Healthcare Services, Inc., et al., No. 19-
`80369-CIV-MARRA (S.D. Fla. Aug. 17, 2020). There, the plaintiff stated his § 1132(a)(1)(B) and (a)(3) claims
`were not pled alternatively. The Court dismissed the breach of fiduciary duty claim pursuant to § 1132(a)(3)
`because the plaintiff was being given leave to amend his claim under § 1132(a)(1)(B) based on the same conduct.
`Here, the Court is providing Plaintiff with the opportunity to replead the Complaint to allege claims under different
`theories of liability pursuant to these two subsections of ERISA. The Court also rejects Defendants’ reliance on
`Harrison v. Digital Health Plan, 183 F.3d 1235, 1237 (11th Cir. 1999). In that case, the Court affirmed the dismissal
`of the plaintiff’s breach of fiduciary duty claim but without any discussion. Neither case prohibits non-duplicative
`alternative pleading.
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`8
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`brought pursuant to § 1132(a)(3) must allege a different theory of liability.8 An example of this
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`type of pleading can be found in the Eighth Circuit case of Jones, 856 F.3d at 547. In that case,
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`the complaint included a count for a denial of benefits under § 1132(a)(1)(B) and a count
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`alleging that the defendant used a claims-handling process that breached its fiduciary duties
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`under § 1132(a)(3) and caused the plaintiff to suffer a loss of benefits. Id. The Eighth Circuit
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`rejected the defendant’s argument that these two claims were duplicative because they both
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`alleged “improper claims handling.” Id. Instead, the Eighth Circuit explained that the
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`§1132(a)(3) claim flowed from the process; specifically, the use of claim examiners with
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`conflicts of interest, whereas the § 1132(a)(1)(B) claim challenged the defendant’s decision that
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`the plaintiff was not disabled. Id. The Eighth Circuit stated that it did not matter if these two
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`claims sought “functionally the same relief” as long as the claims asserted different theories of
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`liability. Id. The Court believes that this Eighth Circuit case is instructive for Plaintiff going
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`forward with an amended complaint in this case. See also Laird v. Aetna Life Ins. Co., 263 F.
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`Supp. 3d 1231, 1124 (M.D. Ala. 2017) (when the plaintiff “tacitly admitted” no claim for
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`benefits under § 1132(a)(1)(B), dismissing her § 1132(a)(3) claim would “leave her with no
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`relief at all” which was “untenable.”); Poole v. Life Insurance Company of North America, 984
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`F. Supp. 2d 1179, 1188 (M.D. Ala. 2013) (permitting the plaintiff to plead a claim pursuant to
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` § 1132(a)(3) if it is determined that he is not entitled to relief he seeks under § 1132(a)(1)(B)).
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`In repleading, Plaintiff must remedy her breach of fiduciary duty claim as well. “[A]
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`party is a fiduciary only ‘to the extent’ that it performs a fiduciary function.” Cotton v.
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`Massachusetts Mut. Life Ins. Co., 402 F.3d 1267, 1277 (11th Cir. 2005). “To establish a claim
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`8 As for Defendants’ reliance on Greenwell v. Group Health Plan for Employees of Sensus USA, Inc., No. 5:19-CV-
`577-FL, 2020 WL 7129936 (E.D.N.C. Dec. 4, 2020), the Court does not find it compelling. Unlike the Fourth
`Circuit cases cited in Greenwell, the Court finds that the Eleventh Circuit cases allow for plaintiffs to bring non-
`duplicative alternative claims for relief.
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`9
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`for breach of fiduciary duty under ERISA, a plaintiff must generally show that the defendants are
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`fiduciaries, that the defendants breached their fiduciary duties, and the breach(es) caused harm.”
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`Dupree v. Prudential Ins. Co. of Am., No. 99-8337-CIV-JORDAN, 2007 WL 2263892, at *37
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`(S.D. Fla. Aug. 7, 2007), as amended (Aug. 10, 2007).
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`Plaintiff’s breach of fiduciary duty claim fails to allege an independent fiduciary act and
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`rests on the implementation or application of a policy that denies benefits. See, e.g., Larson v.
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`United Healthcare Ins. Co., 723 F.3d 905, 917 (7th Cir. 2013) (dismissing the breach of fiduciary
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`claim when the complaint targets decision-making about policy terms); Johns v. Blue Cross Blue
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`Shield of Michigan, No. 2:08-CV-12272, 2009 WL 646636, at *5 (E.D. Mich. Mar. 10, 2009)
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`(the claim alleges that the defendant had a policy of denying payments, and not how the claims
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`procedure was improper).9 Any amended claim must articulate a breach of fiduciary duty that
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`does not rest on the assertion of unpaid benefits.
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`Plaintiff is reminded that, if the amended complaint seeks monetary relief for unpaid
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`benefits under § 1132(a)(1)(B), any additional equitable monetary relief sought under
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`§ 1132(a)(3), must show different damages than the damage of unpaid benefits. These equitable
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`damages must relate to an additional, separate, and actual loss stemming from the breach of
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`fiduciary duty, and not take the form of a monetary penalty to be imposed on Defendants
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`unrelated to an actual loss or harm to Plaintiff and the putative class. See Amara, 563 U.S. at
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`441-42; Williamson, 953 F.3d at 1298. Assuming Plaintiff can plead a breach of fiduciary claim
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`9 Plaintiff relies on several cases in support of the breach of fiduciary duty claim. See Wit v. United Behavioral
`Health, 317 F.R.D. 106 (N.D. Cal. 2016); A.D. v. T-Mobile USA, Inc., No. 2:15-CV-00180-RAJ, 2016 WL
`3882919, at *1 (W.D. Wash. July 18, 2016); Escalante v. California Physicians' Serv., 309 F.R.D. 612, 619 (C.D.
`Cal. 2015); Churchill v. Cigna Corp., No. CIV.A. 10-6911, 2011 WL 3563489, at *4 (E.D. Pa. Aug. 12, 2011).
`These cases address motions for class certification and not whether the plaintiff pleaded a proper claim for breach of
`fiduciary duty. These cases also concerned defendants that developed guidelines that were more restrictive than the
`accepted standard of care. For these reasons, these cases are unpersuasive.
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`10
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`pursuant to § 1132(a)(3), Plaintiff may then seek equitable remedies sought in count three that
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`are consistent with this Order.10 Equitable remedies are appropriate under § 1132(a)(3), as a
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`catch-call provision for ERISA violations that §1132 does not adequately remedy. See Varity,
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`516 U.S. at 512 (section 1132(a)(3) acts as a catchall which provides appropriate equitable
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`relief).
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`Lastly, Defendants are correct that the Complaint impermissibly lumps the two
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`Defendants together. Each Defendant is alleged to be distinct legal entities (Compl. ¶ 8), but the
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`Complaint does not adequately differentiate between Defendants nor inform each Defendant
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`separately of the allegations that apply to it. Joseph v. Bernstein, 612 F. App'x 551, 555 (11th
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`Cir. 2015) (if the complaint indiscriminately groups the defendants together, without articulating
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`the factual basis for each defendant liability, it fails to comply with the minimum standard of
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`Rule 8.); Cellco P'ship v. Plaza Resorts Inc., No. 12-81238-CIV, 2013 WL 5436553, at *7 (S.D.
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`Fla. Sept. 27, 2013) (finding the complaint impermissibly lumps together defendants who are
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`alleged to be distinct legal entities); Court Appointed Receiver of Lancer Offshore, Inc. v. Citco
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`Group Ltd., No. 05–60080–CIV, 2011 WL 1233126, at * 2 (S.D. Fla. Mar. 30, 2011) (“This
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`lumping technique creates confusion and make the analysis of the complaint unnecessarily
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`burdensome,’ and results in ... making accusations that are ‘just not accurate.”) (internal
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`quotation marks omitted).11 Plaintiff is directed to replead the Complaint and remedy these
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`pleading deficiencies.
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`10 Count three, which is essentially a claim of remedies, should not be a stand-alone claim.
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`11 Plaintiff relies on Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indem. Co., 917 F.3d 1249, 1275 (11th
`Cir. 2019) to allow for group pleading. This case is inapposite. In Quality Auto, the complaint alleged that all the
`defendants colluded together, and the complaint stated that the use of the term “defendants” meant each named
`defendant.
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`11
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`IV. Conclusion
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`Accordingly, it is hereby ORDERED AND ADJDUGED as follows:
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`1)
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`Defendants’ Motion to Dismiss Plaintiff’s Complaint (DE 7) is GRANTED IN
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`PART AND DENIED IN PART. Counts one and three are dismissed with leave to
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`amend. The Amended Complaint shall be filed no later than January 25, 2021.
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`2)
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`Defendants’ Motion to Stay Discovery (DE 23) pending the Court’s order on
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`Defendants’ Motion to Dismiss is DENIED AS MOOT.
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`DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
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`Florida, this 4th day of January, 2021.
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`KENNETH A. MARRA
`United States District Judge
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`12
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