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Be a Shell Game Buster! (Or, How to Get the Plan Documents You Need!)

Posted by David P. Martin | May 15, 2017 | 0 Comments

Many people know they have a long-term disability benefit, health benefit, or life insurance benefit, but they don't know the “rules” or terms for the benefit. There are too many instances in which it is vital to know the “rules,” or plan terms, before you have a claim. Even if you don't thoroughly read or understand the document, it will be a key document your ERISA attorney will want to see if you have trouble with a claim.

So, who should give you the plan document so that you know the plan terms? ERISA requires the plan administrator to give a plan participant a copy of the plan document. If the administrator does not, a federal judge can assess penalties for each day of delay after 30 days.

That doesn't seem too hard, so you send a letter to the insurance company. Then you wait and wait and no plan document comes. So now you have a case for penalties, right? Well, maybe not…

In Brooks v. Ryder System, Inc., (S.D. Texas 2015) the plaintiff made a demand for all documents on the claims administrator, Partner Source. However, Partner Source never forwarded the request to the plan administrator. Plan administrator, Ryder System, Inc., said it never received such a request. The court found there was no liability for penalties. This liability is a statutory penalty that can impose a daily fine on a plan administrator who does not produce a plan document within 30 days of a written request by a participant or beneficiary.

One would think that Partner Source was acting as the agent of Ryder System, Inc. Nonetheless, in this instance the agent did not cause any liability for the principal. Compare Center v. Humana, 2015 WL 5822656. There also can be exceptions to the plan administrator rule utilizing the de facto plan administrator doctrine. But that will be saved for another time. It can be hard to know who the plan administrator is. It seems like a shell game.

So, you called the insurance company, and it told you that it is only a claims administrator and that it does not have an obligation to provide you any plan documents, including the policy for which it is providing coverage. It tells you to contact the plan administrator. So, you call your employer, and your employer tells you that this is something provided by the insurance company and you need to contact it. Ugh! … the run around! So, who is this plan administrator? Some mystery entity? Don't stay frustrated. You can bust this shell game!

  • Know that several entities may be involved in the claim. If you know the name of the employer, which is hopefully the plan sponsor, you can first try the Department of Labor website and search Form 5500 filings. ( Once you find the correct plan, the form 5500 should state the name of the plan administrator.
  • To be safe in case you don't have the plan correct, or if that search does not yield results, send a written request for plan documents to everyone involved. To the employer, attn: Plan Administrator; To the employer's HR department, attn: Plan Administrator; To the insurance company, attn: Plan Administrator; To a parent company that wholly owns or controls the employer, attn: Plan Administrator. In fact, if you think of anyone else that may be involved in the plan administration, send a request to them as well. Bust the shell game!

Credit for the metaphor in this article is given to retired District Court Judge William M. Acker, a brilliant federal jurist who well understood the difficulties participants face in ERISA claims. The metaphor appears in Oliver v. Coca-Cola Co., 397 F. Supp. 2d 1327, 1329–30 (N.D. Ala. 2005). “Which shell is the pea now under?”

About the Author

David P. Martin

Senior & Managing Attorney


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