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Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 1 of 22
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`SURESH KURMA
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`Plaintiff,
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`v.
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`STARMARK, INC.,
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`Defendant.
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`CIVIL ACTION NO.
`12-11810-DPW
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`MEMORANDUM AND ORDER
`February 9, 2016
`
`Plaintiff Suresh Kurma’s son was born approximately two
`months premature. He was immediately hospitalized and he
`remained in intensive care for over two months. His hospital
`bills ran in excess of $667,000. At the time, Mr. Kurma was a
`participant in a health care plan for which the defendant,
`Starmark, Inc., was the claims processor.
`Starmark has denied coverage for the hospitalization of Mr.
`Kurma’s newborn son because the child was not properly enrolled
`in the health care plan. Starmark contends that Mr. Kurma
`failed to notify his employer, First Tek Technologies, Inc.
`(“First Tek”) of the birth within 30 days as required for
`coverage by the terms of the health care plan. Mr. Kurma has
`filed suit pursuant to the Employee Retirement Income Security
`Act seeking to recover health benefits for his son.
`
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`1
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`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 2 of 22
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`I have kept this matter under advisement for an extended
`period of time in an effort to assure there is no basis
`available for challenging the fact, which remains undisputed on
`this record, that Mr. Kurma’s employer was not notified of the
`birth of his son within 30 days or that application of the plain
`language of the plan, which requires specific notification to
`the employer even if notice has been provided to the claims
`processor, is appropriate. I have neither been directed to nor
`found any such basis and consequently will grant summary
`judgment to the claims processor.
`I. BACKGROUND
`
`A. Factual Background
`1. Birth and Admission to the NICU
`Mr. Kurma has been an employee of First Tek since 2006.
`Mr. Kurma was enrolled in the First Tek, Inc. Bluesoft Group
`Health Benefit Plan (“the Plan”) beginning on July 1, 2010, the
`date that First Tek adopted this plan. Mr. Kurma’s wife,
`Sailaja Yeddu, and their five-year-old son, were covered under
`the Plan from that same date. When his wife became pregnant in
`the early part of 2010, her pregnancy-related health care was
`covered by the Plan from July 1, 2010.
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`2
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`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 3 of 22
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`On October 7, 2010, his wife went into premature labor and
`their son “Baby Boy,”1 was born that day at Brigham & Women’s
`Hospital. He was admitted into the Neonatal Intensive Care Unit
`(“NICU”) immediately upon his birth, where he remained under
`care until his discharge on December 16, 2010.
`2. Terms of the Plan
`The Plan allows for coverage for newborn children of plan
`
`participants, such as Baby Boy. The Plan states:
`A child born to You while Your coverage is in force is
`covered from the moment of birth if You notify Us and the
`Claims Processor of the birth and pay any additional
`contribution amount required within 30 days after the date
`of birth in order for coverage to become effective. The
`newborn is covered for 30 days after the date of birth for
`all such Benefits provided for Dependents. If you reject
`Dependent coverage and later want to cover Dependents, Your
`Dependents may be considered Late Enrollees.
`
`In the Plan, “We, Us, and Our” refer to the Plan Sponsor, First
`Tek, and “You and Your” refer to the Plan participant, Mr.
`Kurma. The claims processor is Starmark. No benefits are paid
`under the Plan for services provided prior to the effective date
`of a person’s coverage.
`
`The Plan also provides language concerning the discretion
`granted to both First Tek, as the plan sponsor, and Starmark, as
`
`                                                            
`1 The name of Mr. Kurma and Ms. Yeddu’s son is redacted in the
`record materials presented to me. I will refer to the child as
`“Baby Boy” in this opinion.
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`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 4 of 22
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`
`
`the claims processor. Under the heading “Miscellaneous
`Provisions,” the Plan states:
`We [First Tek] have full, exclusive and discretionary
`authority to determine all questions arising in connection
`with this Contract including its interpretation.
`
`The Claims Processor [Starmark] has full, discretionary and
`final authority for construing the terms of the Plan and
`for making final determinations as to appeals of benefit
`claim determinations as described in the Claim Review and
`Appeals Section of this Plan Document. The Claims
`Processor is considered a fiduciary with respect to any
`claim prior to a request for its appeal.
`
`3. Communications Between Mr. Kurma and Starmark Between
`
`Baby Boy’s Birth and His Enrollment
`
`There is no dispute that Starmark was timely notified of
`
`Baby Boy’s birth. Mr. Kurma asserts that he first contacted
`Starmark on October 14, 2010 informing it of the birth of his
`son and his son’s admission to the NICU. During this
`conversation, Mr. Kurma says that he was not informed by the
`Starmark representative that he was required to inform his
`employer of his son’s birth or fill out any forms in order to
`obtain insurance coverage. Starmark denies this conversation
`took place, and there is no evidence in the administrative
`record, other than the second-hand report of Mr. Kurma’s lawyer
`restating Mr. Kurma’s recollection in a letter to Starmark, to
`show that this conversation occurred.2
`
`                                                            
`2 Starmark does not dispute, nevertheless, that it was notified
`in a timely manner under the terms of the Plan of the birth of
`4
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`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 5 of 22
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`On October 21, 2010, Mr. Kurma received a letter from
`CoreSource, Inc., an affiliate of Starmark. That letter
`identified Mr. Kurma as the health care plan enrollee,
`identified the patient as “Baby Boy,” bore the same reference
`number provided to the Hospital, and identified the admission
`date as October 7, 2010 (Baby Boy’s birthdate). In this letter,
`CoreSource requested additional medical information be sent from
`the provider, in order to make a determination of medical
`necessity for the ongoing treatment. The letter was not a
`denial of health services and did not identify any issues beyond
`those of medical necessity; it did not indicate that Baby Boy
`was or was not enrolled in the health plan.
`On October 22, 2010, a telephone call took place between
`Mr. Kurma and a case manager from Starmark. According to
`Starmark’s internal case notes, “Mr. Kurma inquired how to add
`his son to the policy.” The Starmark representative “discussed
`with Mr. Kurma importance of contacting his human resources
`department to complete the necessary paperwork” and “advised the
`paperwork usually needs to be completed within 30 days.” The
`representative further indicated that Mr. Kurma responded with
`“verbalized understanding and agreement.” Mr. Kurma, however,
`denies that he was told of any deadline for notifying his
`
`                                                            
`Mr. Kurma’s son. The consequences of the failure to notify
`First Tek in a timely manner are what is at issue in this case.
`5
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`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 6 of 22
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`employer or told that a written form was required in order to do
`so.
`On October 25, 2010, Deborah Fogal, the Starmark case
`manager for Baby Boy’s claims, spoke again with Mr. Kurma. She
`wrote in an internal email summarizing the discussion that Mr.
`Kurma “indicated the plan is to add the baby to his policy.”
`There is no record that Fogal told Mr. Kurma to notify his
`employer of his son’s birth and Mr. Kurma asserts that Fogal in
`fact did not discuss the need for notice with him.
`On November 8, 2010 – more than 30 days after the birth of
`Baby Boy – Starmark sent to Mr. Kurma a document titled
`“Certificate of Group Coverage.” The certificate states that it
`“is evidence of your coverage under this plan.” It identifies
`Suresh Kurma as the plan participant, includes Baby Boy as the
`individual to whom the certificate applies, and then gives the
`dates of coverage. The “Date coverage began” is given as
`October 7, 2010, the date of Baby Boy’s birth, and the “Date
`coverage ended” is given anachronistically as October 6, 2010,
`the day before he was born. Much later, in a letter to Mr.
`Kurma’s attorney, Starmark explained that this was “not a
`typographical error” but the company’s method of showing that
`coverage never began.
`Beyond Starmark’s communications with Mr. Kurma, there were
`also internal Starmark communications of relevance during this
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`6
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`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 7 of 22
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`period. In particular, on November 4, 2010, an internal claim
`note refers to Baby Boy as the “insured” in describing his
`claims and treatment. That claim note states: “**Of note:
`Newborn mandated coverage for the first 31 days - official
`enrollment into the plan is then needed for continued coverage.”
`However, a manager responded to that note the following day with
`a correction: “This is a healthy incentive 2 policy (ASO),
`mandated coverage for the first 31 days does not apply. We will
`need enrollment on file to consider the claims.”
`
`4. Notice and Enrollment
`Finally, Starmark called Mr. Kurma on November 29, 2010.
`In that conversation, Mr. Kurma stated that he had added Baby
`Boy to his policy, according to internal Starmark case notes.
`Later that night, Mr. Kurma emailed Shital Shah at First Tek and
`asked him to “add my new born baby boy to my health insurance
`plan.” There is no earlier identified provision by Mr. Kurma of
`notice of Baby Boy’s birth to First Tek in the record.
`Mr. Shah then forwarded the email to Melisa Vilano at CG
`Benefits Group, the broker for First Tek, writing “Please see
`the attached and add Suresh Kurma’s new born Son effective
`10/7/2010. Suresh Kurma is enrolled in Starmark Insurance.
`Please let me know if you have any questions.” Ms. Vilano
`replied on December 14, 2010 that “Baby is enrolled 1/1/2011.
`Babies must be added within 31 days of birth.”
`
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`7
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`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 8 of 22
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`Mr. Kurma completed paperwork to add Baby Boy to his policy
`on December 6, 2010, including a Special Enrollee Form. Under
`the Plan, special enrollees are those for whom coverage was
`initially declined and who are later added to coverage. Special
`enrollees are described in a different provision of the Plan
`from that which describes the process for adding coverage for a
`newborn immediately from his birth. This paperwork appears to
`be what ultimately activated coverage for Baby Boy at the
`beginning of the next month.
`5. Denial of Benefits
`In late December of 2010, Mr. Kurma was informed by his
`employer that Starmark was denying coverage of the expenses
`accrued during Baby Boy’s hospitalization. He was told that
`this was because the written enrollment forms were not returned
`to the employer within the required time period. This was the
`first time that Mr. Kurma was informed that Starmark actually
`denied benefits because Mr. Kurma had failed to notify First Tek
`in a timely manner of the birth of his son. Mr. Kurma called
`Starmark on December 21, 2010. A case management note from
`Starmark indicates “He was very upset that his newborn was not
`added as the DOB. I explained to him that the enrollment form
`was not rcvd in time so the child was enrolled late.”
`On January 13, 2011, Starmark sent Mr. Kurma eight
`explanation of benefits forms indicating that it would not pay
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`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 9 of 22
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`for the cost of the treatment incurred during Baby Boy’s
`hospitalization at the Brigham & Women’s NICU. Each form
`indicated that patient was “effective with Starmark 1/01/2011”
`and the reason for denial of coverage was that the claim was for
`treatment “before dependent’s effective date.” The bills from
`Brigham & Women’s Hospital for which Starmark has denied
`coverage total $667,457.62.
`On February 3, 2011, Christopher Tighe, a human resources
`manager at First Tek, called Jerel Levenson, a representative at
`First Tek’s broker, CG Benefits Group, to inquire about why Mr.
`Kurma’s son had not been enrolled in the Plan. Mr. Levenson
`responded with an email to Mr. Tighe and Kumar Bhavanasi, the
`CEO of First Tek, in which he wrote that:
`An employee has 31 days to add child to insurance, once
`Starmark is notified via enrollment form, child is covered
`from date of birth.
`
`Failure to notify company within 31 days, child can only be
`added first of month after notification. . . .
`
`Mr. Kurma, is stating that he called Starmark himself to
`add child.
`
`Starmark customer service would have advised him that a
`form needed to be submitted through company HR department.
`
`This is standard protocol and is never deviated or
`exemptions made to this rule.
`
`Thus he is not telling correct story, responsibility was on
`Mr. Kurma to add child within allotted time frame, in his
`benefit booklet, that he received at home, all of this was
`detailed.
`
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`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 10 of 22
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`Mr. Kurma did not act accordingly and the rules were all
`followed in this case and everyone did exactly what they
`were supposed to do. Thus any claims incurred are his
`responsibility and his alone.
`
`Mr. Bhavanasi responded by writing that “[Mr. Kurma] has a
`prematurely born child who is still in hospital and in deep
`sorrow and was not in a right frame of mind. Is there any thing
`you can do to make the carrier make an exception?” In the
`subsequent chain of emails, this request was rejected.
`In October 2011, counsel for Mr. Kurma sent a letter to
`Starmark’s grievance review department, recounting the facts
`above and requesting that Starmark reconsider its decision to
`deny coverage of the expenses incurred during Baby Boy’s
`hospitalization. After receiving no response from Starmark,
`counsel for Mr. Kurma sent a second letter dated February 8,
`2012, requesting a response to his previous letter. On April 2,
`2012, a paralegal for the Trustmark Companies responded with a
`letter explaining the basis for the denial of benefits. The
`letter stated that Mr. Kurma had failed to meet the notification
`requirements for timely enrollment of his son in the plan: “The
`plan required that Mr. Kurma notify Starmark AND his employer,
`within 30 days after the infant’s date of birth. Starmark
`received notification within the required time frame, but First
`Tek did not . . . First Tek received email notification from Mr.
`Kurma regarding the birth on November 29, 2010.”
`
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`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 11 of 22
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`
`B. Procedural Background
`
`Mr. Kurma filed this suit on September 28, 2012. The
`parties have agreed that the case is governed by ERISA, 29
`U.S.C. § 1001, et seq. and have agreed that this case is ripe
`for decision based upon the administrative record that was filed
`by the parties.
`
`At a hearing on the motion for summary judgment filed by
`Starmark, I directed the parties to contact First Tek, which is
`not a party to this proceeding, to obtain their view regarding
`the appropriate interpretation of the relevant terms of the Plan
`and regarding the appropriate resolution of this matter. First
`Tek has declined to respond to inquiries from the parties.
`Accordingly, pursuant to an order of March 21, 2014 related to
`the solicitation of First Tek’s views, I deem the silence of
`First Tek to be ratification of Starmark’s determination on
`those matters.
`
`II. STANDARD OF REVIEW
`This denial-of-benefits claim arises under 29 U.S.C. §
`1132(a)(1)(B). “ERISA cases are generally decided on the
`administrative record without discovery,” Morales–Alejandro v.
`Med. Card Sys., Inc., 486 F.3d 693, 698 (1st Cir. 2007), and the
`parties have agreed that such a procedure is appropriate in this
`case.
`
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`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 12 of 22
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`Under Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
`115 (1989), a denial of benefits, challenged under ERISA, is
`reviewed de novo “unless the benefit plan gives the
`administrator or fiduciary discretionary authority to determine
`eligibility for benefits or to construe the terms of the plan.”
`See also Brigham v. Sun Life of Canada, 317 F.3d 72, 80 (1st
`Cir. 2003) (“We have steadfastly applied Firestone to mandate de
`novo review of benefits determinations unless a benefits plan
`... clearly grant[s] discretionary authority to the
`administrator.”) (internal citations and quotation marks
`omitted). When a grant of discretionary authority is found, the
`denial decision is afforded a more deferential standard of
`judicial review. This review has been referred to by a number
`of names, including “arbitrary and capricious.” Id. Regardless
`of its label, such review looks to whether a decisionmaker
`abused its discretion by making a “determination [that] was
`unreasonable in light of the information available to it.”
`Pari-Fasano v. ITT Hartford Life and Acc. Ins. Co., 230 F.3d
`415, 419 (1st Cir. 2000). While there “are no required ‘magic
`words,’” and “‘language that falls short of th[e] ideal’ can
`suffice,” the First Circuit has required a “clear grant of
`discretion” and “more than subtle inferences drawn from . . .
`
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`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 13 of 22
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`unrevealing language.” Gross v. Sun Life Assur. Co. of Canada,
`734 F.3d 1, 13, 16 (1st Cir. 2013).3
`The Plan at issue here gives two – arguably inconsistent -
`grants of discretion, one to First Tek and one to Starmark.
`First Tek is given “full, exclusive and discretionary authority
`to determine all questions arising in connection with this
`Contract including its interpretation” (emphasis added). The
`exclusive grant to First Tek is belied by the fact that Starmark
`is also given “full, discretionary and final authority for
`construing the terms of the Plan and for making final
`determinations as to appeals of benefit claim determinations as
`described in the Claim Review and Appeals section of this Plan
`Document (emphasis added).” These provisions are undoubtedly
`clear in their invocation of discretion, but their interaction
`is less self-evident. There is nothing inherently problematic
`
`                                                            
`3 Plaintiff also contends that Starmark’s alleged violations of
`the procedural requirements of ERISA preclude deferential
`review, citing a pair of Tenth Circuit opinions. LaAsmar v.
`Phelps Dodge Corp. Life & Accident, Death & Dismemberment &
`Dependent Life Plan, 605 F.3d 78, 797-799 (10th Cir. 2010);
`Rasanack ex rel. Tribolet v. AIG Life Ins. Co., 585 F.3d 1311,
`1316 (10th Cir. 2009). This is not the law in the First
`Circuit, which analyzes the effect of procedural violations on a
`case-by-case basis. Bard v. Boston Shipping Ass’n, 471 F.3d
`229, 236 (1st Cir. 2006). The procedural irregularities
`alleged, such as late or incomplete notices of an adverse appeal
`determination, have no “connection to the substantive decision
`reached” and do not “call into question the integrity of the
`benefits-denial decision itself.” Id. at 244. Consequently, I
`do not find those allegations – the validity of which I do not
`reach – relevant to the standard of review.
`13
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`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 14 of 22
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`about a plan which divides discretion between multiple
`decisionmakers. Fendler v. CNA Grp. Life Assur. Co, 247 F.
`App'x 754, 759 (6th Cir. 2007). Nevertheless, the complications
`created by the relationship between the two provisions reduces
`the clarity required for deferential review.
`However, I conclude that de novo review of Starmark’s
`interpretations of the Plan is appropriate here. To be sure,
`both companies are given discretion over the interpretation of
`the Plan. Those grants are on their face conflicting and even
`self-contradictory. First Tek is stated to have “exclusive”
`authority over interpretation, while Starmark is given “final”
`authority. Both cannot be true: whose interpretation would
`govern in a dispute? The answer is not clear enough, under
`Gross, to merit deferential review.
`As for the application of the Plan in this matter, I find
`the division of labor and of discretion between First Tek and
`Starmark sufficiently legible to apply deferential review.
`These provisions give Starmark – the claims processor –
`discretion over claim determinations.4 I read this specific
`
`                                                            
`4 More precisely, the Plan only gives Starmark discretion over
`“final determinations as to appeals of benefit claim
`determinations” and does not mention initial benefit claim
`determinations. In a denial-of-benefits suit, only the final
`decision is under review. See Terry v. Bayer Corp., 145 F.3d
`28, 35-36 (1st Cir. 1998). In any event, First Tek has
`acquiesced by its silence in the determination before me here.
`14
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`provision as a modification of the more general grant of
`discretion to First Tek. See Cent. Int’l Co. v. Kemper Nat.
`Ins. Companies, 202 F.3d 372, 374 (1st Cir. 2000) (“Normally,
`specific language is treated as a limitation on general
`language”) (citing Restatement (Second) of Contracts § 203(c)
`(1979)). In this setting, Starmark is entitled to deferential
`review on its claim determinations, if not for other elements of
`the benefits process.
`Starmark is not owed any deference for a determination that
`Baby Boy was enrolled in the Plan; the fact of enrollment was
`within the discretion of First Tek. But Starmark’s application
`of that undisputed fact in denying benefits is entitled to
`deference.5 Consequently, for purposes of this dispute, so long
`as Starmark acted reasonably, under the terms of the Plan, in
`denying benefits based on the lack of enrollment, it is entitled
`to summary judgment.6
`
`III. ANALYSIS
`A. Application of the Plan’s Provision for Newborn Coverage
`
`The Plan unambiguously provides a mechanism by which
`
`                                                            
`5 Contrary to Plaintiff’s assertions, I find no evidence that
`Starmark improperly delegated this decision to any of its
`affiliates or third parties. The record shows that relevant
`decisions were made by Starmark and the relevant communications
`came from Starmark.
`6 I must note, however, that whether I applied de novo or
`deferential review, the outcome in this litigation would remain
`the same.
`
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`covered parents can enroll their newborn children in the Plan.
`A newborn is “covered from the moment of birth if You notify Us
`and the Claims Processor of the birth and pay any additional
`contribution amount required within 30 days after the date of
`birth.” The term “Us” is defined to mean First Tek. The basic
`meaning of this provision is clear: Baby Boy was covered only if
`Mr. Kurma provided some notice of the birth to both his
`employer, First Tek, and to Starmark. I must “accord an ERISA
`plan’s unambiguous language its plain and ordinary meaning.”
`Forcier v. Metro Life Insurance Co., 469 F.3d 178, 185 (1st Cir.
`2006).
`There is no material dispute about which notices were
`provided to which entity and therefore no real dispute about the
`effect of this Plan provision. The parties agree that Mr. Kurma
`notified Starmark of his son’s birth within 30 days of the
`birth. And the parties agree that notice was first given to
`First Tek on November 29, 2010: 49 days after the birth. While
`the Plan may be ambiguous with regards to the form of notice
`required – plaintiff has pressed the issue whether written
`notice was required or whether a particular form had to be used
`– those ambiguities are immaterial to this dispute. No notice
`of any kind was given to First Tek in the relevant 30 day
`period. Accordingly, this provision did not give Baby Boy
`coverage under the Plan.
`
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`To a significant degree, the application of this provision
`decides the case. In a denial-of-benefits suit, “the central
`issue must always be what the plan promised … and whether the
`plan delivered.” Liston v. Unum Corp. Officer Severance Plan,
`330 F.3d 19, 25 (1st Cir. 2003). The plan did not promise Mr.
`Kurma coverage for his son without both notices; it delivered on
`the promises it did make by allowing the eventual enrollment of
`Baby Boy as a late “special enrollee” with coverage effective
`January 1, 2011. Compare Jersey City Incinerator Auth. v. Bp
`Inc., No. 10-56 (JLL), 2010 WL 778259, at *3 (D.N.J. Mar. 8,
`2010) (upholding benefit denial where newborn not enrolled
`according to procedure set forth in plan); Crews v. Sara Lee
`Corp., No. 08-CV-113-LRR, 2010 WL 3000378, at *8 (N.D. Iowa July
`27, 2010) (same). The Plan set up a mechanism to enroll
`newborns; Mr. Kurma failed to engage that mechanism properly and
`Starmark was entitled to deny coverage on those grounds.
`
`B. Alternative Theories of Coverage
`Given the harsh effects of applying the Plan, Mr. Kurma
`understandably advances various methods for avoiding the plan’s
`plain language. None is effective.
`Mr. Kurma argues that First Tek, which had discretion over
`enrollment matters, wanted Baby Boy to be covered, as evidenced
`
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`by its eventual requests for coverage from Starmark.7 But
`discretion does not allow a plan administrator to make an end
`run around the Plan documents. “Informal communications cannot
`alter the clear and unambiguous terms of the Plan.” Fenton v.
`John Hancock Mut. Life Ins. Co., 400 F.3d 83, 89 (1st Cir.
`2005), quoting Perry v. New England Bus. Serv., Inc., 347 F.3d
`343, 346 & n. 3 (1st Cir. 2003) (internal quotations omitted).
`Cf. Epright v. Envtl. Res. Mgmt., Inc. Health & Welfare Plan, 81
`F.3d 335, 339 (3d Cir. 1996) (interpretation of plan
`administrator with discretion, extrinsic evidence, and past
`practice all “of no significance where the plan document is
`clear.”).
`Likewise, Mr. Kurma cannot establish that Starmark is
`estopped from denying coverage based on a lack of notice to
`First Tek. The First Circuit has not yet decided whether it
`recognizes estoppel claims under ERISA’s civil enforcement
`provisions. Livick v. The Gillette Co., 524 F.3d 24, 31 (1st
`Cir. 2008). But it has made clear that ERISA estoppel claims
`could only be recognized “when the plan terms are ambiguous.”
`Id. “[A] plan beneficiary might reasonably rely on an informal
`
`                                                            
`7 The requests were made well after the relevant period and were
`denied by Starmark. In any event, given First Tek’s formal
`position in connection with this litigation, as framed by its
`failure to respond for a statement of position, First Tek has
`declined to challenge Starmark’s determination to deny the
`claims.
`
` 
`
`18
`
`

`
`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 19 of 22
`
`statement interpreting an ambiguous plan provision; if the
`provision is clear, however, an informal statement in conflict
`with it is in effect purporting to modify the plan term,
`rendering any reliance on it inherently unreasonable.” Id.
`Here, the plan terms are unambiguous: notice was required to
`both First Tek and Starmark. Likewise, in Todisco v. Verizon
`Communications, Inc., the First Circuit explained that ERISA
`only allows suit for benefits due “under the terms of the plan.”
`497 F.3d 95, 101 (1st Cir. 2007). Todisco rejects precisely the
`argument that Mr. Kurma now undertakes to make. “Because the
`plan's language is clear, and because [plaintiff] indisputably
`did not take the actions that this language required, plaintiff
`cannot reasonably claim that [his] suit is a suit for benefits
`due under the terms of the plan.” Id. An estoppel theory
`cannot support Mr. Kurma’s claim.8
`
`                                                            
`8 Nor is it obvious that this would be the only bar to an
`estoppel claim. Estoppel requires “(1) a promise, (2) reliance
`on the promise, (3) injury caused by the reliance, and (4) an
`injustice if the promise is not enforced” and in the ERISA
`context, the additional factor of “extraordinary circumstances.”
`Devlin v. Empire Blue Cross & Blue Shield, 274 F.3d 76, 85 (2d
`Cir. 2001). See also Hooven v. Exxon Mobil Corp., 465 F.3d 566,
`571 & n.4 (3d Cir. 2006). Given the evidence in record, it is
`difficult to see what promise Mr. Kurma could seek to enforce.
`Starmark never told him that his son was covered or that he did
`not need to notify his employer. The closest thing to such a
`promise was the certificate of coverage Starmark provided Mr.
`Kurma, which confusingly purported to evidence Baby Boy’s
`coverage under the Plan, but for a negative period of time.
`But, in addition to its peculiar recital of dates showing no
`actual coverage period, this certificate was issued after the
`19
`
` 
`
`

`
`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 20 of 22
`
`Mr. Kurma makes an argument related to estoppel by invoking
`Epright v. Envtl. Res. Mgmt., Inc. Health & Welfare Plan, 81
`F.3d 335, 339 (3d Cir. 1996). There, the Third Circuit held
`that a failure to complete required enrollment forms did not
`deny an employee coverage where the failure was the fault of the
`plan administrator. Putting aside whether Mr. Kurma’s failure
`to notify First Tek could be excused under Third Circuit law, it
`is clear that this cannot be done in the First Circuit. The
`First Circuit has discussed Epright and other similar cases and
`noted that employees can only benefit under such doctrines in
`“egregious cases in which the company took wrongful affirmative
`action or made misrepresentations that interfered with
`benefits.” Green v. ExxonMobil Corp., 470 F.3d 415, 420 & n.4.
`Even under plaintiff’s report, however, the most that Starmark
`did is fail to inform Mr. Kurma of his obligation to notify
`First Tek (although there is disputed record evidence suggesting
`that Starmark did inform Mr. Kurma of this, in the October 22
`phone call). There was no affirmative action or
`misrepresentation here; there was, at worst, a failure to inform
`Mr. Kurma about what the Plan unambiguously required.
`Such a failure to inform is not actionable here. Under
`procedural provisions of ERISA which are not directly at issue
`
`                                                            
`30-day period, meaning that there could not have been reliance
`on it in any event.
`
` 
`
`20
`
`

`
`Case 1:12-cv-11810-DPW Document 39 Filed 02/09/16 Page 21 of 22
`
`in this case, for example, “courts have almost uniformly
`rejected claims by plan participants or beneficiaries that an
`ERISA administrator has to volunteer individualized information
`taking account of their peculiar circumstances.” Barrs v.
`Lockheed Martin, 287 F.3d 202, 207–08 (1st Cir. 2002).
`Generally, a failure to inform is only a breach of fiduciary
`duty where there is “bad faith, concealment or fraud,” or where
`the information previously provided made it impossible for the
`employee to understand the terms of his plan otherwise. Watson
`v. Deaconess Waltham Hosp., 298 F.3d 102, 113-16 (1st Cir.
`2002). There is no evidence of bad faith, concealment or fraud,
`and the Plan documents clearly stated the requirements for
`newborn coverage.
`The limited rights to information specified by ERISA allow
`for claims against the plan administrator, not against distinct
`entities — like the claims processors — which have no obligation
`to provide that information. Cf. Law v. Ernst & Young, 956 F.2d
`364, 374 (1st Cir. 1992); see also Moran v. Aetna Life Ins. Co.,
`872 F.2d 296, 299-300 (9th Cir. 1989) (“Congress has provided
`for three classes of persons who may be sued as the plan
`administrator under section 1132(c). Because Aetna was not
`designated as p

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