Finnegan v. Medco Health Solutions, Inc. et al

REPLY BRIEF to Opposition to Motion

D.N.J.February 10, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY V COLLEEN P. FINNEGAN, Plaintift MEDCO HEALTH SOLUTIONS, INC., as the Plan Administrator of the Medco Health Solutions, Inc. Welfare Benefit Plan, EXPRESS SCRIPTS, INC., as the parent of, or successor to, Medco Health Solutionso Inc., and TFIE PRUDENTIAL INSURANCE COMPANY OF AMERICA as the Designated Fiduciary of the Plan, Defendants Civil Action No. 2:l 4-cv -07 1 84-MCA-MAH Motion Returnable: Feb. 2lr 2017 PLAINTIFF'S REPLY BRIEF IN FURTHER SUPPORT OF HER MOTION FOR PARTIAL SUMMARY JUDGMENT JARDIM, MEISNER & SUSSER, P.C. 308 Vreeland Road, Suite 201 Florham Park, NJ 07932 Tel.: (973) 845-7640 Fax (973) 845-7645 Attorneys for Plaintiff Colleen Finnegan Of Counsel and on the Brief: ALISSA PYRICH Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 1 of 19 PageID: 971 TABLE OF CONTENTS PRELIMINARY STATEMENT.......... ......1 LEGAL ARGUMENT ......... aJ I. DEFENDANTS HAVE NOT RAISED GENUINE DISPUTES OF FACT SUFFICIENT TO DEFEAT SUMMARY JUDGMENT ....................3 II. COLLEEN HAS DEMONSTATED AS A MATTER OF LAW THAT DEFENDANTS OWED AND BREACFIED THEIR FIDUCIARY DUTY UNDER ERISA ..............6 A. when communicating vrith colleen About The Terms Of The Medco Plan, Medco/Express Scripts'Were Acting As Fiduciaries 6 B The Evidence Shows That MedcoÆxpress Scripts Misled Colleen 9 C Colleen Detrimentally Relied On Misleading Information From Medco/Express Scripts ...........13 CONCLUSION ...........1s Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 2 of 19 PageID: 972 TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1e86).............. ...........s Araujo v. Kraft Foods Glob., Inc., 387 F. App". 212 (3d Cir. 2010) Bhaya v. Westinghouse Elec. Corp., 922F.2d 184 (3d Cir. 1990), cert. denied,50l U.S. l2l7 (1991) Bixler v. Cent. Pa. Teamsters Health & Welfare Fund, IzF.3d 1292 (3d Cir. 1993) Fischer v. Philqdelphia Elec. Co., 994F.2d 130 (3d Cir.), cert. denied,510 U.S. 1020 (1993) Harte v. Bethlehem Steel Corp., 2I4F.3d 446 (3d Cir.), cert. denied,53l U.S. 1037 (2000) Hornv. Cendqnt Operations, Inc., 69 F. Appx. 421 (l}th Cir. 2003) Hozier v. Midwest Fasteners, Inc., 908 F.2d 11ss (3d Cir. 1990) 11 7 41 8 8 11 Bowerman v. Wal-Mart Stores, Inc., 226F.3d 574 (7th Cir. 2000) 11 Canestri v, NYSA-ILA Pension Tr. Fund & Plan, Civil Action No. 07-1603 (JLL), 2010 U.S. Dist. LEXIS 112668 (D.N.J. Oct.22,2010)...... ..............14 Engers v. AT&7, 428 F . S.tpp. 2d 213 (D.N.J. 2006) 6, 7 , ll 6,8 Genter v. ACME Scale & Supply Co., 776F.2d 1180 (3d Cir. 198s) ..........6 Griggs v. E.L DuPont De Nemours & Co., 237 F.3d371 (4th Cir. 2001) 11 ll 6 Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 3 of 19 PageID: 973 James v. Pirelli Armstrong Tire Corp., 30s F.3d 439 (6thCir.2002)............. ........... 8-9 Krohn v. Huron Mem. Hosp., 173F.3d542 (6thCir. 1999)............. .........9, l0 McMunnv. Pirelli Tire, LLC, 161 F. Supp.2d 97 (D. Conn. 2001)...... ...........9 Quiroga v. Hasbro, Inc., 934F.2d 497 (3d Cir.), cert. denied,502 U.S. 940 (1991) Saldana v. Kmart Corp., 260 F .3d 228 (3d Cir. 200 1 ) Taylor v. Peoples Nat. Gas Co., 49 F.3d982 (3d Cir. 1995) UAW v. Skinner Engine Co., 188 F.3d 130 (3d Cir. 1999) In re (Inßys Corp. Retiree Medical Benefit ERISA Litig., 57 F.3d 1255 (3d Cir. 1995), cert. deníed,517 U.S. 1103 (1996) Unßys Corp. Retiree Med. Benefits ENSA Litig. v. Unisys Corp., 579F.3d220 (3dCir.2009), cert. denied,559 U.S. 940 (2010) Rules Fed. R. Evid.20l Statutes and Resulations 29 C.F.R. ç 2s20.t02-2 J 5 7 8 3 7 7 T4 13 1l 2e u.s.c. ç t022 111 11 Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 4 of 19 PageID: 974 PRELIMINARY STATEMENT In opposing Colleen'sl motion for partial summary judgment as to their liability for breach of fiduciary duty under ERISA, Defendants do not dispute the most essential fact in the case - namely, that no one from MedcoÆxpress Scripts ever told Colleen that the "premium waiver" andlor company-paid life insurance benefit she was seeking was not available to her, either because it did not exist or because the termination of her employment had cut it off. Faced with this damning fact, Defendants offer unpersuasive arguments For example, Medco/Express Scripts contends they were not acting as a fiduciary in communicating with Colleen. However, ministerial employees who speak and act on behalf of a plan administrator in carrying out the administrator's fiduciary duties (such as communicating with participants about benefits) can bind the administrator and give rise to breaches of fiduciary duty. Indeed, it would thwart the protective purposes of ERISA if a plan administrator could avoid its fiduciary duty to provide accurate and complete information by delegating the task of communicating with participants to its own employees. Similarly, the notionthat Colleen could have and should have deduced from the 2012 SPD for the Medco Plan that she could not take advantage of the "premium t All defined terms have the same meaning as in Plaintiffs December 23,2016 moving Brief, ECF Doc. No. 56-1. Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 5 of 19 PageID: 975 waiver" ignores the lack of clarity in the SPD's description of the benefit. The2012 SPD identifies specific requirements to qualiff for the "premium waiver," yet does not expressly state that continued employment by MedcoÆxpress Scripts is one of those requirements. Instead, the SPD is written in such a way to suggest to the average person that continued employment was not a condition for receiving the benefit. Colleen certainly found the 2012 SPD language unclear and that lack of clarity was not remedied in the least by Medco/Express Scripts, who initially failed to respond to her inquiries and then provided inaccurate information. Defendants' arguments on the question of detrimental reliance are equally unavailing. Even if MedcoÆxpress Scripts employees did not make affirmative misstatements or inaccurate statements prior to Colleen's decision to forego converting her life insurance benefits with Minnesota Life, Colleen had sought information and guidance about the May 10,2013 Letter from Minnesota Life from Human Resources and her inquiries were ignored. Silence by a fiduciary in the face of questions from a plan participant is just as much of a breach of duty as affirmative misstatements. Lacking any guidance from Medco/Express Scripts - such as a statement that she was not eligible for the "premium waiver" benefit andlor that this benefit did not exist (as Defendants now contend) - Colleen made a detrimental financial decision based on the belief that the "premium waiver" benefit did exist 2 Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 6 of 19 PageID: 976 and was available to her. This is precisely the kind of detrimental reliance required to prove a breach of fiduciary duty claim. In short, this is a simple case. Medco/Express Scripts, as plan administrator, owed Colleen a fiduciary duty to provide clear and accurate information about her benefits. Defendants failed to fulfill that duty and, as a result, Colleen acted on incomplete or inaccurate information and suffered harm as a result. As all of the elements of a breach of fiduciary duty claim under ERISA have been fulfilled, Colleen's motion for partial summary judgment on liability should be granted. LEGAL ARGUMENT POINT I DEFENDANTS HAVE NOT RAISED GENUINE DISPUTES OF FACT SUFFICIENT TO DEFEAT SUMMARY JUDGMENT To defeat Colleen's motion for summary judgment, Defendants must present specific facts, supported by evidence, demonstrating a genuine and material issue fortrial. See,e.g.,Quirogav. Hasbro, Lnc',934F.2d497,500 (3dCir.), cert. denied, 502 U.S. 940 (1991). Defendants "may not rest upon mere allegations, general denials, or ... vague statements." Quiroga, 934 F.2d at 500; see also Saldana v. Kmart Corp., 260 F .3d 228, 232 (3d Cir. 200 1). Most of the essential facts here are not disputed at all. Most notably, Medco/Express Scripts do not dispute that: J Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 7 of 19 PageID: 977 a a Medco was the plan administrator of the Medco Plan, fDefendants' Response to Plaintiffs' Statement of Undisputed Material Facts, ECF Doc. No. 66, 11 101; a a Colleen was a participant in the Medco Plan, [d.,] lll; Colleen elected and received life insurance benefits through a component of the Medco Plan through December 3l,2012,Vd.l; . Colleen was on medical and disability leave starting in January 2012, and remained on leave through April 20l3,when she was terminated,lld.,l4, 5l; and Colleen qualified for long-term disability ("LTD") benefits effective July 27,2012. lld.,1141. The terms of the 2012 SPD, including the key language on page 9 concerning continuing life insurance through age 70 for people receiving long-term disability benefits, also are not in dispute. lld.,1l l5l. Where Defendants do contest Colleen's facts, they offer unacceptable general denials or vague statements, but little or no evidence.2 This omission is not surprising, as MedcoÆxpress Scripts have no fact witness with personal knowledge who can contradict Colleen's testimony. Medco/Express Scripts present absolutely no documents or testimony contradicting Colleen's statements in her Declaration about what she understood when she read the 2012 SPD or why she opted against converting her life insurance to a personal policy with Minnesota Life. Likewise, there is no evidence in the 2 Nearly all ofMedcoÆxpress Scripts' alleged o'disputes of fact" are legal arguments that go the weight of the evidence or credibility. 4 Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 8 of 19 PageID: 978 record that contests Colleen's sworn statement that she attempted to contact various people within Medco/Express Scripts to help her understand her life insurance benefits and the May 20,2013 Letter from Minnesota Life, but never received any responses to her calls. [December 22,2016 Declaration of Colleen Finnegan, ECF Doc. No. 55 ("Colleen Dec."), n221. Most importantly, Defendants present no evidence thal, in response to Colleen's inquiries, anyone from MedcoÆxpress Scripts ever explained that no "premium waiver" benefit existed or was availableto her. At most, Defendants point to the May 10, 2013 Letter from Minnesota Life, which does not mention a oopremium waiver" at all, yet somehow should have put Colleen on notice that such a benefit did not exist. [See Colleen Dec., Ex. A]. A motion for summary judgment should be denied "unless there is sufficient evidence favoring the nonmoving party for a jury to retum a verdict for that pafi." Saldana, 260 F.3d at 232, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). As Defendants have not met Colleen's evidence with contrary evidence of their own, Colleen's motion for partial summary judgment as to liability should be granted 5 Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 9 of 19 PageID: 979 POINT II COLLEEN HAS DEMONSTATED AS A MATTER OF LAW THAT DEFENDANTS OWED AND BREACHED THEIR FIDUCIARY DUTY UNDER ERISA A. When Communicating With Colleen About The Terms Of The Medco Plan. MedcoÆxnress Scrints Were As Fiduciaries Medco/Express Scripts contend that they cannot be held liable for a breach of fiduciary duty because they did not act as a fiduciary in its communications with Colleen. fDefendants' Opp. Brief, ECF Doc. No. 65, at 4-71. However, it is undisputed that Medco was the plan administrator of the Medco Plan. [December 23,2016 Declaration of Alissa Pyrich, ECF Doc. No. 54 ("Pyrich Dec."),Ex. 2, fl 241. Plan administrutors are /ìduciaries under ERISA. Fischer v. Philadelphia Elec. Co.,994F.2d 130, 133 (3d Cir.) (holding that, "[a]s aplanadministrator under ERISA ... fPhiladelphia Elec. Co.] was a fiduciary"), cert. denied,510 U.S. 1020 (1993); Hozier v. Midwest Fasteners, lnc.,908 F.2d 1155, 1158 (3d Cir. 1990) (holding that when employers serve as plan administrators, they assume the role of fiduciary under ERISA); Genter v. ACME Scale & Supply Co.,776 F.2d 11S0 (3d Cir. 1985) (holding that employer-administrator of the plan at issue met the ERISA definition of a fiduci*y); Engers v. AT&7, 428 F . Supp. 2d 213,233 (D.N.J. 2006) (holding that, "[u]nder ERISA, an employer that also serves as a plan administrator, like Defendants in this case, is a fiduciary"). 6 Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 10 of 19 PageID: 980 Moreover, the particular activity in question - namely, speaking to a plan participant about plan benefits - is a fiduciary function. "The law in this circuit instructs that'when a plan ødministralor expløins pløn beneftts to its employees, iÍ acts in øJiduciary capacity."' (JAW v. Skìnner Engine Co.,188 F.3d 130, 148 (3d Cir. 1999) (emphasis added), quoting In re Unßys Corp. Retiree Med. Benefit "ERISA" Litig.,57 F .3d 1255, 1261 n.lO (3d Cir. 1995), cert. denied,sl7 U.S. 1 103 (1996); see also Taylor v. Peoples Nat. Gas Co., 49 F.3d 982,987 (3d Cir. 1995) (acknowledging that an plan administrator communicating with participants has a fiduciary duty not to misrepresent information regarding the plan); Bixler v. Central Penn. Teamsters Health-Welfar" Program, 12 F.3d 1292, 1300 (3d Cir. 1993) (finding that plan administrators have a fiduciary duty "to convey complete and accurate information material to the benef,rciary's circumstances"); Engers,428F. Supp. 2d at233 (l{l aplan administrator breaches its fiduciary duty under ERISA if it makes material misrepresentations to plan participants concerning employee benefits."). Nevertheless, Defendants argue that the individual Human Resources personnel who communicated with Colleen were not fiduciaries, and thus MedcoÆxpress Scripts cannot be held liable for what they said or failed to say. This 7 argument ignores well-settled law. Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 11 of 19 PageID: 981 Corporations must act and speak through human beings. See generally Bhøya v Westinghouse Elec. Corp.,922 F.zd 184, 195 (3d Cir. 1990) (noting that "corporate entities can speak only through employees"), cert. denied,50IrJ.S.l2l7 (1991). Corporations that are ERISA plan administrators ffiãy, and often do, delegate the responsibility for communicating with participants to ministerial agents, such as human resources or benefits department employees. See Taylor, 49 F.3d at 987. While these ministerial employees often are not fiduciaries themselves, they are ogenls of the employer-plan administrator for the purposes of carrying out fiduciary duties. Taylor,49 F.3d at 987-88. Indeed, courts in this Circuit and elsewhere have treated communications with human resources personnel, benefits managers or similar ministerial employees as communications with the fiduciary on whose behalf these employees work. See, e.g., Taylor, 49 F.3d aI 987-89 (holding plan administrator liable for breach of fiduciary duty based on misrepresentations made by Supervisor of Employee Benefits); Fischer 994 F.2d at 133-35 (holding employer-plan administrator liable for breach of fiduciary duty based on misrepresentations made by benefits counselors);accordHornv.CendantOperations, Inc.,69F.Appx.42l,427-28(1Oth Cir. 2003) (holding that plan administrator-employer spoke through human resources employees as plan fiduciary, and was liable for their misstatements); James v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 455-56 (61h Cir. 2002) 8 Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 12 of 19 PageID: 982 (concluding that employer-plan administrator breached fiduciary duties due to misleading and inaccurate communications by an assistant employee relations manager); Krohn v. Huron Mem. Hospital, 173 F.3d 542 (6th Cir. 1999) (finding that employer-plan administrator breached its fiduciary duty when persorìnel assistant provided materially misleading information about available benefits to plan participant); McMunn v. Pirelli Tire, LLC,161 F. Supp.2d 97, 129 (D. Conn .2001) (holding that misrepresentations about benefits made by various human resources officials constituted a breach of fiduciary duty by the plan administrator-employer). Accordingly, the fact that Jaimee Conley and others within the Human Resources department who dealt with Colleen may have been only ministerial employees is irrelevant. In their dealings with Colleen, they were acting as agents of their employers, Medco/Express Scripts, the plan administrator and fiduciary. Thus, Medco/Express Scripts can and should be bound by their statements, by their omissions, and by their failure to provide Colleen with full and accurate information about her rights and benefits. B. The Evidence Shows That Medco/Exnress Scrints Misled Colleen Even in opposing Colleen's motion, Defendants are unable to point to any evidence that any representative of MedcoÆxpress Scripts ever simply and honestly told Colleen that the "premium waiver" benefit she thought she had did not exist or that her rights to such benefits ended when she was terminated. If the non-existence I Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 13 of 19 PageID: 983 of this benefit was as clear and obvious as Defendants now claim, surely someone in Human Resources should have known this fact, or could have read the Medco Plan's 2012 SPD and then communicated that fact to Colleen. Yet, it is undisputed that no one did. Instead, Human Resources employees strung Colleen along without communicating this essential information to her. Rather than being given an accurate description of her benefits, she was initially ignored, [Collen Dec., n 22], then provided mistaken information about which insurance policy applied to her, Ud.,n 31], and then actually assisted in preparing an application to Prudential for a benefit that Defendants now contend does not exist. Defendants do not dispute these communications (or lack of communication) happened, and do not provide any evidence showing that Colleen was actually told that she had no right to a "premium waiver" or company-paid life insurance benefit. Defendants contend that assisting Colleen to apply to Prudential for the "premium waiver" benefit was somehow not misleading. [Defendants' Opp. Brief, ECF Doc. No. 65, at 91. ERISA plan administrators' fiduciary duties include an affirmative obligation to refrain not only from deliberately misleading statements3, 3 In fact, a showing of intent to deceive or mislead is not required to show a breach of fiduciary duty under ERISA. See, e.g., Krohn, 773 F.3d at 547 (holding that a fiduciary breaches its duty by providing participants with materially misleading information "regardless of whether the fiduciary's statements or omissions were made negligently or intentionally"). 10 Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 14 of 19 PageID: 984 but also from 'oincomplete, inconsistent or contradictory" communications with participants about their benefits. Harte v. Bethlehem Steel Corp.,2l4F .3d 446, 452 (3d Cir.), cert. denied,531 U.S. 1037 (2000); see also Griggs v. E.I. DuPont De Nemours & Co.,237 F.3d 371, 380 (4th Cir. 2001). Assisting Colleen to complete and file an application for a purportedly non-existent benefit is certainly "inconsistent" and "contradictory," and thus a breach of fiduciary duty under the 1aw. Defendants also argue that the 2012 SPD clearly communicated that Colleen had no right to a'opremium waiver" after her employment was ended. fDefendants' Opp. Brief, ECF Doc. No. 65, at 8-91. Yet again, their contentions disregard the relevant law. ERISA requires an SPD to be written "inamanner calculated to be understood by the average plan participant."a 29 U.S.C . ç 1022(a), see also Araujo v. Kraft Foods Glob., Inc., 387 F. Appx. 212, 217 (3d Cir. 2010). In keeping with this obligation, an SPD "must not minimize or obscure 'any description of exception, limitations, reductions, and other restrictions of plan benefits."' Engers, 428 F. Supp. 2d at233, quoting2g CFR S 2520.102-2(b). o Likewise, when a federal court interprets an SPD, it must do so based on how the document would be understood as an avetage person. See, e.g., Bowermqn v. Wal- Mart Stores, Inc.,226F.3d 574,587 (7fh Cir. 2000). 11 Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 15 of 19 PageID: 985 The 2012 SPD for the Medco Plan does not make it clear to an average person that one must continue to be employed by Medco to take advantage of the "premium waiver" clause found on page 9. The operative language on page 9 sets out four specific requirements to qualift for this benefit: (1) the participant is receiving long- term disability benefits; (2) the disability commenced while the participant was insured and before age 65; (3) the participant is totally disabled for six months; and (4) proof of disability is provided to Prudential. fPyrich Dec., 8x.6, p. 9]. If these conditions are met: Your coverage will continue unintemrpted while you remain totally disabled up to age 70, provided you provide proof of your continued disability annually to Prudential. [Id.]. No other restrictions or limitations are mentioned. Importantly, this section of the SPD does not say that the participant must be totally disabled, under age 70, ønd employed by Medco to take advantage of the benefit. It merely requires that the participant have been insured by Medco when the disability commenced - which Colleen indisputably was. To the average person, unschooled in benefits law, the additional requirement that one must continue to be employed by Medco is inconsistent with the promise that the company-paid life insurance benefit will continue "while you remain totally disabled up to age 70, provided you provide proof of your continued disability annually to Prudential." fPyrich Dec., Ex.6, p. 9]. Given that the normal retirement t2 Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 16 of 19 PageID: 986 age is between 65 and 67s, the average person, upon seeing that the company-paid life insurance will last up to age 70, would reasonably believe the benefit could endure beyond the time one is employed by Medco as long as the other conditions are met. The unclear language of the SPD combined with the failure of MedcoÆxpress Scripts Human Resources to explain her benefits accurately had the net effect of misleading Colleen into believing that a'opremium waiver" or company-paid life insurance benefit was available to her. The evidence in the record thus supports only one conclusion - namely, that Medco/Express Scripts breached their fiduciary duty in their dealings with Colleen. Colleen's motion for pafüal summary judgment on liability therefore should be granted. C Colleen Detrimentally Relied On Misleading Information From Medco/Express Scripts Defendants contend that Colleen can prove her breach of fiduciary duty claim only if she can show that but for their misleading and inaccurate statements, she would have received the "premium waiver" benefit. fDefendants' Opp. Brief ECF Doc. No. 65, at 10]. This is not current Third Circuit law, however. Rather, for the purposes of proving a claim for breach of fiduciary duty, the element of detrimental 5 The Court can take judicial notice that the Social Security Administration defines the "normal retirement age" as between ages 65 and 67. .SSA. 13 uction.html . See Fed. R. Evid.2}l Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 17 of 19 PageID: 987 reliance can be established by evidence of any importanf finønciul decision that was made, to the detriment of the plan participant, as a result of misleading, false, or incomplete information provided by a f,rduciary. Unisys Corp. Retiree Med. Benefits ERISA Litig. v. Unisys Corp., 579 F.3d 220,229 (3d Cir. 2009), cert. denied, 559 U.S. 940 (2010); Canestri v. NYSA-ILA Pension Tr. Fund & Plan, Civil Action No 07 -1603 (JLL), 2010 U.S. Dist. LEXIS 112668, at *31-32 (D.N.J. Oct. 22, 2010) The evidence shows that Colleen made key decisions, to her detriment, as a result of Medco/Express Scripts' misleading conduct. When Colleen received the May 10, 2013 Letter from MinnesotaLife, she attempted to obtain information from Medco/Express Scripts about her life insurance benefits and the "premium waiver" she believed she had. Despite MedcoÆxpress Scripts' affirmative duty, as a fiduciary under ERISA, o'to inform when the ffiduciary] knows that silence might be harmful," Bixler, t2F.3d at 1300, Colleen received no response to her inquiries [Colleen Dec., ]22]. Without full and complete information, and believing that she had the ability to obtain employer-paid life insurance for as long as she was disabled through age 70, Colleen made the important financial decision to reject the option of continuing her life insurance through Minnesota Life as too expensive. lld., n 25]. Then, over a period of months, being strung along by incomplete and inaccurate information from Medco/Express Scripts' Human Resources personnel, Colleen made the important financial decision to pursue the apparently non-existent l4 Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 18 of 19 PageID: 988 "premium waiver" benefit in lieu of any other options. The ultimate result of all of these decisions is that Colleen has been unable to replace the full amount of life insurance that she previously had through the Medco Plan. Accordingly, under the Third Circuit's broad definition of detrimental reliance, Collen has established this necessary element by showing that she made several decisions to her detriment because she was led to believe that the "premium waiver" benefit existed and that she could take advantage of it. Although the precise remedy available to Colleen will have to be determined attrial, as to the question of liability, Colleen is entitled to summary judgment in her favor. CONCLUSION For the foregoing reasons, as well as those set forth in her December 23,2017 and January 20,2077 brieß, Plaintiff Colleen Finnegan respectfully requests that the Court grant summary judgment on the question of liability, finding as a matter of law that MedcoÆxpress Scripts breached fiduciary duties to her under ERISA. Respectfully submitted, JARDIM, MEISNER & SUSSER, P.C. Attorneys for Plaintiff Colleen Finnegan : s/ Alissa Pyrich ALISSA PYRICH Dated: February 10,2017 By l5 Case 2:14-cv-07184-MCA-MAH Document 74 Filed 02/10/17 Page 19 of 19 PageID: 989