the controverted terms of the plan. See id. ("A mistake in referring to an outdated form to determine eligibility does not rise to the level of an interpretation of the plan's provisions justifying application of the equitable estoppel doctrine.").
Accordingly, Bertozzi's claim based on equitable estoppel must fail.
2. Compliance with the Plan Summary Theory
Bertozzi next argues that because the election letter meets the requirements of the summary plan description ("SPD") that Kaiser distributes to its employees, the letter should be enforced despite its failure to meet the technical requirements identified in the Plan itself. In this instance, the SPD provides that "if you choose an option other than this Joint and Survivor Annuity, your spouse must consent to your election." [Canter Decl., Ex. B at 20.]
Under ERISA, all participants in an employee benefit plan must be provided with a SPD that is "written in a manner calculated to be understood by the average plan participant." 29 U.S.C. § 1022 (a)(1). The SPD must be "sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan." Id. More importantly, the SPD must contain a description of the "circumstances which may result in disqualification, ineligibility, or denial or loss of benefits." 29 U.S.C. § 1022(b). "The focus of concern [of section 1022] is with circumstances that might cause a participant or beneficiary not to receive benefits." Pompano v. Michael Schiavone & Sons, Inc., 680 F.2d 911, 914 (2d Cir. 1982), cert. denied, 459 U.S. 1039, 74 L. Ed. 2d 607, 103 S. Ct. 454 (1982).
Case law provides that where the terms of the SPD and the plan conflict, the terms of the SPD govern a claim for benefits. See, e.g., Hansen v. Continental Ins. Co., 940 F.2d 971 (5th Cir. 1991) (cited with approval in Price v. Provident Life & Acc. Ins. Co., 2 F.3d 986, 988 n.1 (9th Cir. 1993)); Edwards v. State Farm Mut., 851 F.2d 134 (6th Cir. 1988); Ruotolo v. Sherwin Williams Co., 622 F. Supp. 546 (D. Conn. 1985).
The circuits have split, however, regarding whether an employee seeking to enforce the terms of an SPD must first establish that he or she detrimentally relied on those terms. Compare Branch v. G. Bernd Co., 955 F.2d 1574, 1579 (11th Cir. 1992) (reliance on SPD required) and Senkier v. Hartford Life & Accident Ins. Co., 948 F.2d 1050, 1051 (7th Cir. 1991) (same) and Bachelder v. Communications Satellite Corp., 837 F.2d 519, 522-23 (1st Cir. 1988) (same) with Hansen v. Continental Ins. Co., 940 F.2d 971, 982 (5th Cir. 1991) (no need to establish reliance) and Edwards v. State Farm Mut. Auto. Ins. Co., 851 F.2d 134, 136-37 (6th Cir. 1988) (same). The Ninth Circuit has not yet decided this issue. Long v. Flying Tiger Line, Inc., 994 F.2d 692 (9th Cir. 1993).
The Court finds persuasive the reasoning of the First, Seventh and Eleventh Circuits and concludes that an employee who wishes to enforce the terms of an SPD, in lieu of conflicting terms contained in the actual plan, must first prove that he or she reasonably relied on those terms. Enforcement of the terms of an SPD in the absence of a showing of reliance would amount to holding the plan administrator strictly liable for the deficiencies in its SPD. The Court cannot countenance such strong medicine. In addition, the Court concludes that the holdings in Hansen and Edwards allowing recovery in the absence of reliance can properly be classified as dicta because, in both cases, the courts ultimately found that the employees in question had actually relied on the SPD. Hansen, 940 F.2d at 983; Edwards, 851 F.2d at 137.
Kaiser maintains that this theory of recovery is not available to Bertozzi because (1) the SPD of the plan does not conflict with the language of the Plan, itself; and (2) Bertozzi has not adequately alleged that her mother relied on the SPD when executing her election letter. Both arguments fail.
First, a review of the SPD reveals that it lacks important details. Most notably, although it informs the participant that she needs to obtain her spouse's consent, it does not mention that the consent must be notarized and that the spouse must explicitly acknowledge the effect of his or her waiver. These details are contained only in the language of the Plan itself. Yet, Kaiser is attempting to use these same two requirements as the basis for denying Bertozzi's claim for her mother's pension benefits.
Second, Kaiser argues that Bertozzi has put forth no evidence that her mother actually relied on the SPD when she executed the election letter. Although Kaiser correctly asserts that Bertozzi has not put forth much evidence to support her reliance theory, it is sufficient to preclude summary judgment at this juncture. The election letter contains an affirmative request for payment of a lump sum benefit in lieu of the default annuity. In addition, it is signed by Mrs. Hodge's husband and two other witnesses. From the contents of the election letter, the Court can reasonably infer that Mrs. Hodge was aware that specific measures had to be taken to elect a lump sum payment and that she may have relied on the SPD Kaiser provides to each of its employees to guide her through the appropriate steps. Although these inferences are sufficient to preclude summary judgment at this juncture, at trial, Bertozzi will bear the burden of establishing that her mother reasonably relied on the terms of the SPD when she executed the election letter. See, e.g., Ruotolo, 622 F. Supp. at 550 (Fact that plaintiff stated in an affidavit that he "glanced" at the SPD was sufficient to preclude summary judgment.).
3. Breach of Fiduciary Duty Theory
Finally, Bertozzi argues that Kaiser breached its fiduciary duty by failing to mail Mrs. Hodge the retirement information that she requested and that to remedy this breach, the Court should award her the lump sum retirement benefit. It is indisputable that plan administrators have a fiduciary duty to "give complete and accurate information in response to a participants' questions." Drennan v. General Motors Corp., 977 F.2d 246, 251 (6th Cir. 1992), cert. denied, 124 L. Ed. 2d 639, U.S. , 113 S. Ct. 2416 (1993). Despite this duty, Bertozzi's claim that she is entitled to an award of benefits is precluded by Supreme Court and Ninth Circuit precedent in this area.
The primary remedial provisions of ERISA can be found in section 1132, which details the causes of action that may be maintained by plan participants and those that may only be maintained by the Secretary of Labor. The first provision, a claim for benefits under section 1132(a)(1), allows plan participants and beneficiaries "to recover benefits due to him under the terms of his plan." 29 U.S.C. § 1132(a)(1)(B). Under this provision, a court must determine whether the participant or beneficiary is entitled to benefits based upon his or her compliance with the terms of the plan. Because both sides agree that Mrs. Hodge's election letter does not satisfy the Plan's requirements, this avenue of relief is closed to Bertozzi.
Next, section 1132(a)(2) provides that a participant may bring an action to obtain "appropriate relief under section 1109 . . . ." 29 U.S.C. § 1132(a)(2). Recovery under section 1109, however, has been strictly construed and must run to the benefit of the plan as a whole, rather than to an individual participant or beneficiary. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 144, 87 L. Ed. 2d 96, 105 S. Ct. 3085 (1985). Because Bertozzi seeks to recover an individual award of benefits, relief under section 1132(a)(2) is also precluded.
Finally, section 1132(a)(3) provides:
(3) [an action may be brought] by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.
Bertozzi maintains that because section 1132(a)(3) provides for the crafting of "other appropriate equitable relief," the Court can award her mother's lump sum pension benefit to remedy Kaiser's breach of its fiduciary duty. Unfortunately for Bertozzi, recent Supreme Court and Ninth Circuit precedent in this area precludes such an award.
The Supreme Court has recently held that section 1132(a)(3) does not permit an award of compensatory damages against nonfiduciaries to remedy a breach of fiduciary duty. Mertens v. Hewitt Assoc., U.S. , 113 S. Ct. 2063, 124 L. Ed. 2d 161 (1993). The Court specifically examined the nature of the award sought--compensatory damages--and determined that the strict textual language of section 1132(a)(3) allowing for "equitable relief" precluded such an award. Rather, the Court concluded that the language limited remedies under the section to traditional equitable remedies, such as injunction and restitution. Id. at 169, 174. Similarly, the Ninth Circuit has also held that extra-contractual damages, such as damages for emotional distress, are not available under section 1132(a)(3). Sokol v. Bernstein, 803 F.2d 532 (9th Cir. 1986).
Bertozzi correctly notes that several circuits have recognized that section 1132(a)(3) provides for an individual cause of action for breach of a fiduciary duty and authorizes an award of monetary damages to redress the breach. See, e.g., Bixler v. Central Penn. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1993 U.S. App. LEXIS 33700 (3rd Cir. filed Dec. 28, 1993); Warren v. Society Nat'l Bank, 905 F.2d 975 (6th Cir. 1990), cert. denied, 500 U.S. 952, 114 L. Ed. 2d 709, 111 S. Ct. 2256 (1991); Eddy v. Colonial Life Ins. Co. of Am., 287 U.S. App. D.C. 76, 919 F.2d 747 (D.C. Cir. 1990). Bixler, however, does not even mention Mertens, even though the Supreme Court issued the opinion six months before the Sixth Circuit decided it. In addition, the other cases on which the Sixth Circuit relied for support in Bixler, including Warren and Eddy, were all decided pre-Mertens. Consequently, their continuing viability is questionable.
In addition, even if the Court were to characterize the award of damages that Bertozzi seeks as contractual as opposed to extracontractual and thereby distinguishable from the type of damages sought in Mertens, she would still be unable to recover under section 1132(a)(3). In Sokol, the Ninth Circuit's decision rested only in part on the fact that the claimant was seeking extracontractual damages. Of equal importance to the court was who was seeking the award. For example, the Court emphasized that the restrictions on who may recover under section 1132(a)(2) apply with equal force to section 1132(a)(3) in light of ERISA's legislative history, noting:
the legislative history of ERISA supports the proposition that the entire statute was aimed at the protection of the integrity of pension plans, rather than at the protection of beneficiaries.