Norwoodv.State Farm Mutual Automobile Insurance Company

United States District Court, N.D. Georgia, Atlanta DivisionJan 27, 2006
Civil Action No. 1:04-cv-1626-GEC (N.D. Ga. Jan. 27, 2006)

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Civil Action No. 1:04-cv-1626-GEC.

January 27, 2006


ORDER


G. TIDWELL, District Judge

The above-styled matter is presently before the court on:

(1) defendant State Farm Mutual Automobile Insurance Company's motion for summary judgment [docket no. 51];

(2) plaintiff's motion for oral argument [docket no. 58];

(3) defendant State Farm Mutual Automobile Insurance Company's motion to strike [docket no. 64].

On May 5, 2004, plaintiff filed this action against her former employer and certain individuals in the State Court of Fulton County, Georgia asserting state law claims for wrongful denial of benefits under an ADD policy, retirement plan, and severance plan provided by State Farm Mutual Automobile Insurance Company ("State Farm") Plaintiff also asserted a claim for intentional infliction of emotional distress and sought punitive damages and attorney's fees. On June 7, 2004, defendants removed the action to this court pursuant to 28 U.S.C. §§ 1331, 1441, asserting that plaintiff's claims are governed by the Employee Retirement Income Security Act of 1974 ("FRIBA"), 29 U.S.C. §§ 1001 et seq.

On October 5, 2004, the court issued an order denying plaintiff's motion to remand, denying without prejudice defendant's motion to dismiss and granting the plaintiff leave to amend her complaint to recast her claims under ERISA. On October 25, 2004, plaintiff filed her "Amended and Recast Complaint," naming State farm as the only defendant. Plaintiff seeks benefits pursuant to the ADD policy as well as retirement benefits pursuant to a severance package offered to certain employees after plaintiff's retirement.

Defendant filed a motion for summary judgment on all issues, as well as a motion to strike a portion of plaintiff's response to the motion for summary judgment. Plaintiff requests oral argument on the motion for summary judgment.

Motion for oral argument

Having read and considered plaintiff's motion for oral argument, the court concludes that defendant's motion for summary judgment can be resolved on the basis of the written record. Therefore, plaintiff's motion for oral argument [docket no. 581 is DENIED.

Motion to Strike

Defendant moves to strike "Paragraph 5 of the affidavit of Catherine Norwood, included in the Appendix to Plaintiff's Response to Motion for Summary Judgment, and Exhibit A attached thereto" relating to plaintiff's purported appeal of State Farm's denial of her severance benefits. According to defendant, this document was produced for the first time in connection with plaintiff's response to defendant's motion for summary judgment and is not consistent with plaintiff's deposition testimony or paragraph 5 of her affidavit.

Local Rule 7.1B requires that "any party opposing a motion shall serve the party's response . . . not later than ten (10) days after service of the motion," and further provides that, "[f]ailure to file a response shall indicate that there is no opposition to the motion." LR 7.1B, ND Ga. As of the date of this order, plaintiff has not responded to defendant's motion to strike [docket no. 64] which included a certificate of service. Accordingly, the court GRANTS AS UNOPPOSED defendant's motion to strike [docket no. 64]. The court will not consider paragraph 5 of plaintiff's affidavit and Exhibit A attached thereto, filed in response to defendant's motion for summary judgment.

The court also acknowledges that plaintiff, in her response to defendant's statement of material facts, objected to certain evidence as hearsay. The evidence in question, however, either qualifies as "non-hearsay" because it is not offered to prove the truth of the matter asserted or it is admissible hearsay under the business records exception. See Fed.R.Evid. 801,803. Therefore, the court has considered this evidence for such purposes.

Motion for Summary Judgment

Standard of Review

Courts should grant summary judgment when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must "always bear the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). That burden is `discharged by "showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325; see also U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991).

Once the movant has met this burden, the opposing party must then present evidence establishing that there is a genuine issue of material fact. Celotex, 477 U.S. at 325. The nonmoving party must go beyond the pleadings and submit evidence such as affidavits, depositions and admissions that are sufficient to demonstrate that if allowed to proceed to trial, a jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). If he does so, there is a genuine issue of fact that requires a trial. In making a determination of whether there is a material issue of fact, the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Id. at 255; Rollins v. TechSouth. Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). However, an issue is not genuine if it is unsupported by evidence or if it is created by evidence that is "merely colorable" or is "nod significantly probative."Anderson, 477 U.S. at 249-50. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the nonmoving party's case. Id. at 248. Thus, to create a genuine issue of material fact for trial, the party opposing the summary judgment must come forward with specific evidence of every element essential to his case with respect to which (1) he has the burden of proof, and (2) the summary judgment movant has made a plausible showing of the absence of evidence of the necessary element. Celotex, 477 U.S, at 323.

Facts

In light of the foregoing standard, the court finds the following facts for the purpose of resolving this motion for summary judgment only. Plaintiff is a former employee of State Farm. Among the benefits State Farm provides to its employees in the United States is a group accidental death and dismemberment insurance plan ("ADD plan") and an early retirement severance compensation plan ("severance plan"). State Farm is the designated administrator for both plans and has sole authority and discretion to administer and interpret the plans.

The ADD plan, through the purchase of insurance, provides benefits in the event of accident or death to State Farm employees and their eligible dependents. The severance plan provides severance to eligible State Farm employees. Employees are eligible for severance benefits only if they meet several conditions, including the condition that the employee be identified as an impacted employee in a transition plan approved by State Farm's Chairman's Council.

The ADD plan and the severance plan both provide for a single appeal from the denial of a claim for benefits. Appeals must be submitted within 60 days of the decision to deny a claim.

ADD Plan

Plaintiff obtained coverage under the ADD plan for her husband, William Frank Norwood, which provided for accidental death benefits in the amount of $320,000. Plaintiff was the designated beneficiary of these benefits.

Mr. Norwood had a number of pre-existing medical conditions, including: end stage renal disease which was treated by dialysis for five to six years prior to his hospitalization and for which he had been considered for a kidney transplant; chronic at rial fibrillation requiring daily anticoagulation medication; type 2 diabetes mellitus for over ten years, controlled by diet at the time of his hospitalization but for which he had taken medication in the past; hypertension for over ten years requiring daily medication; balance and gait problems causing leg spasms. It also was suspected that he had diverticulitis but this condition was not confirmed.

Mr. Norwood received medical care at hospitals thirty-four times between August 1995 and September 2002, constituting seventeen different hospital admissions involving at least one night's stay, ten outpatient surgeries, and seven other treatments in a hospital setting. This does not include Mr. Norwood's regular dialysis treatments.

On August 23, 2002, Mr. Norwood tripped at his home and stubbed his left big toe. The same day, he also developed diarrhea, indicating that Mr. Norwood had some form of colitis. "Colitis" is a medical term for an inflammatory condition of the bowel which can cause diarrhea.

Home treatment was applied to the toe until August 28, 2002, when Mr. Norwood went to Kennestone Hospital because the toe appeared to be infected. Upon reporting to the hospital, Mr. Norwood's foot was painful, swollen, and red. He was diagnosed with a cellulitis infection of the left toe and foot.

According to Dr. Manolo Gallego, Mr. Norwood's primary care doctor for treatment of his diabetes and kidney failure, the foot infection was a diabetic foot infection, resulting from Mr. Norwood's long history of diabetes. The toe infection and the pre-hospitalization colitis were two separate disease processes.

Dr. Loredo Lawsin suspected that Mr. Norwood might have Clostridium difficile ("C.diff.") colitis at the time of his admission to the hospital and ordered a stool test to determine whether that bacteria was causing Mr. Norwood's diarrhea, but the test was not performed at that time. The C. diff. bacteria can cause colitis, mild to very severe diarrhea, and, in severe cases, necrosis of the bowel, toxic megacolon, and sepsis.

Some adults carry the C. diff. bacteria without symptoms, sometimes throughout their entire life. Other adults may contract the bacteria from their environment. C. diff. is commonly present in hospital environments and may be contracted there. An individual with a history of multiple hospitalizations is more likely to be a carrier of the organism. Tests indicating the presence of the bacteria do not reveal when the individual was exposed to the bacteria or how long the bacteria has been present in the colon.

While hospitalized, Mr. Norwood received intravenous antibiotics to treat the foot infection. A vascular surgeon, Dr. Jeffrey Reilly, was consulted to examine Mr. Norwood's foot on August 30, 2002. Dr. Reilly reported that Mr. Norwood did not have a palpable pedal pulse on the left side. (Dr. Lawsin, however, had detected pedal pulses). Dr. Reilly also stated that Mr. Norwood "has a tibial level occlusive disease" (a circulatory system disease) and a secondary cellulitis related to the injury of his toe. Circulatory system disease can cause certain complications, including the failure of wounds to heal properly and in a timely fashion. This condition can result from diabetes.

Mr. Norwood's cellulitis improved during the hospitalization but he suffered a second episode of diarrhea on September 3, 2002. On that day, Dr. Arnold Lentnek, an infectious disease specialist, was consulted and he recommended changing Mr. Norwood's medications and checking Mr. Norwood for C. diff. At the time, Dr. Lentnek suspected that the antibiotics Mr. Norwood was receiving to treat his foot infection had "exacerbat[ed] his underlying colitis." The test was performed and came back positive for the presence of the bacteria.

The C.diff. bacteria in Mr. Norwood's colon was an entirely separate bacteria from that which infected his foot. C. diff. colitis occurs when the C. diff. bacteria grows in large numbers in the bowel. This bacterial growth can be caused by exposure to antibiotics. There is no way to know if Mr. Norwood was a carrier of C. diff. bacteria, contracted the bacteria while hospitalized for his infected foot, or contracted the bacteria in one of his prior hospitalizations.

On the morning of September 4, 2002, Mr. Norwood had a fever, complained of severe abdominal pain and appeared toxic. A surgeon, Dr. Jeffrey Schwab, examined Mr. Norwood. Dr. Schwab considered and recommended surgery for the acute abdomen secondary to C. diff. colitis. Dr. Schwab concluded, however, that Mr. Norwood's pre-existing conditions, particularly his need for anticoagulation treatments, placed him at a very high risk for surgery. Dr. Schwab also concluded that Mr. Norwood would not survive an operation at that time. Dr. Lentnek's medical opinion is that if Mr. Norwood had been able to have the surgery, he likely would have survived.

Mr. Norwood was transferred to the intensive care unit. Antibiotics were continued and he was given oxygen therapy and cardiac and pulmonary evaluations and treatment for coagulation abnormalities. Mr. Norwood went into cardiac arrest and lost pulse, but he was resuscitated. After this initial cardiac arrest, Mr. Norwood's prognosis was very poor. Early on the morning of September 5, 2002, Mr. Norwood again went into cardiac arrest and he died. He was 65 years old. The official cause of Mr. Norwood's death, per the death certificate, was cardiac arrest due to or as a consequence of sepsis. The death certificate also lists diabetes mellitus and end stage kidney failure as "conditions contributing to death but not related to cause given in Part 1A." The official hospital death summary, prepared by Dr. Lawsin eleven days after Mr. Norwood's death, also lists the cause of death as "acute abdominal sepsis possibly secondary to Clostridium difficil colitis, diverticulitis, ischemic colitis." Neither the death certificate nor the death summary mention accident, the stubbed toe or the cellulitis infection of the foot as a cause of Mr. Norwood's death.

Mr. Norwood's pre-existing medical conditions increased his risk of developing severe sepsis and complicated the sepsis by lessening his ability to respond to the sepsis. Mr. Norwood's diabetes, end stage renal disease, C. diff. colitis, sepsis, diabetic foot infection, and atrial fibrillation contributed to Mr. Norwood's death to varying degrees. According to Dr. Lawsin, the C. diff. colitis made a substantial contribution to Mr. Norwood's death. Furthermore, if Mr. Norwood had not had diabetes and end stage kidney failure, among other conditions, his likelihood of death would have been much less.

In the fall of 2002, plaintiff filed a claim with State Farm to recover benefits under the ADD plan. Plaintiff submitted the appropriate claim forms, a letter from Dr. Gallego, the death certificate, and the medical records from her husband's hospitalization to support her claim. Dr. Gallego stated in his initial letter, dated October 18, 2002, that Mr. Norwood's foot infection "subsequently was complicated by sudden onset of colitis as well as fulminant sepsis with severe shock, and multiple organ failure."

State Farm obtained a medical review of the documentation submitted by plaintiff. According to defendant, Dr. Michael R. Cochran reviewed the records and determined that the death was not directly and independently due to the stubbed toe but was due to complications of multi-system disease processes.

State Farm also obtained a legal review to determine the applicable law governing the construction of the policy language. The legal review determined that federall law would govern because the ADD plan is an ERISA plan. The legal review advised that State Farm, as plan administrator, had discretion to interpret and apply the policy language. The legal review discussed severall different then-prevailing interpretations of similar plan language.

After reviewing the materials submitted by plaintiff and the results of the medical and legal reviews, defendant determined that the stubbed toe was not the direct and independent cause of Mr. Norwood's death and denied the claim. Plaintiff appealed the denial of her claim. In support of her appeal, plaintiff submitted a letter from Dr. Gallego dated March 19, 2003, in which Dr. Gallego stated that Mr. Norwood's foot infection "subsequently while complicated by sudden onset of colitis and underlying diabetes mellitus, led to fulminant sepsis with severe shock and multiple organ failure." This second letter was similar to the original letter with certain words changed and others added.

A draft of this second letter had been prepared by plaintiff's attorney and submitted to Dr. Gallego by plaintiff on or around February 23, 2004. The second letter was solicited by plaintiff through a letter "begging for help" from Dr. Gallego due to the fact that State Farm had denied the ADD claim. In her letter, plaintiff states, "[m]y attorney states the letter you wrote for me needs to be worded a little bit different in order for him to make them pay the claim." Plaintiff enclosed "a copy of a letter the atty[sic] wrote to show you what he needs to be written." Plaintiff asserted that she needed the money from the ADD plan to "live on" for the rest of her life and asked Dr. Gallego to "do it for Frank."

Dr. Gallego submitted a letter similar to that prepared by plaintiff's attorney, but he specifically declined to include the following sentence: "In my opinion, the underlying cause of death was the injury to his toe, which never healed and ultimately led to his demise." Dr. Gallego testified that he did not feel comfortable signing the letter with that sentence in it. No other information or documentation was submitted to State Farm in support of the appeal at this time.

An appeals committee, including a physician, an attorney, and severall life claims personnel, met on April 17, 2003. After reviewing the plan language, the original documentation and the new letter from Dr. Gallego, the committee affirmed the decision to deny the claim on the ground that the stubbed toe was not the direct and independent cause of Mr. Norwood's death.

On January 30, 2004, over nine months after the appeals committee decision, plaintiff submitted a letter signed by Dr. Lawsin, but written entirely by her attorney, stating that the "accidental injury to [Mr. Norwood's] great toe and the infection resulting therefrom as a result of the injury was in fact the direct cause of Mr. Norwood's death." Dr. Lawsin testified that this letter was the result of a meeting arranged by plaintiff and her lawyer:

The content of the meeting was did I think that if it wasn't for the foot injury that Frank Norwood would still be alive, and I had a hard time kind of thinking about it that way because I had been thinking of him dying from the infection. But he was kind of pressing me to say do you think if he hadn't got [sic] stubbed a toe and hadn't got the infection in the foot and if he hadn't gotten the infection from the treatment of the foot, do you think he would still be alive, you know.

After the meeting, plaintiff and her attorney gave Dr. Lawsin a draft letter, which he transferred to his letterhead verbatim and signed. Dr. Lawsin testified that the immediate cause of death was acute abdominal sepsis possibly secondary to C. diff, colitis, diverticulitis and ischemic colitis. Dr. Lawsin further testified that the January 30, 2004 letter refers to cause of death in a broader sense than the immediate cause of death. Dr. Lawsin testified that the stubbed toe "indirectly" caused Mr. Norwoad's death through the antibiotic treatment. Individuals suffering a stubbed toe do not typically develop C. diff. colitis. Dr. Lawsin never treated a patient who did not have diabetes and end stage kidney failure who stubbed his or her toe and died. Dr. Lawsin's letter is the first and only document in the claim file to expressly identify the stubbed toe as the cause of death.

Although the plan provides for a single appeal, State Farm treated the submission of Dr. Lawsin's letter as a second appeal. A second appeals committee, again including a physician, a lawyer, and claims personnel, was convened on March 4, 2004, to review the decision to deny plaintiff's claim. After reviewing the materials reviewed by the previous appeals committee as well as the letter submitted by Dr. Lawsin, the second appeals committee affirmed the denial of the claim and determined that Mr. Norwood's stubbed toe was not the direct and independent cause of death. After the second appeal decision, no further information or documentation was submitted by plaintiff in support of her claim. Mr. Norwood had not seen or been treated by Dr. Lawsin prior to the hospitalization in which he died. Mr. Norwood's primary care physician on an outpatient basis before his death was Dr. Gallego. Though Dr. Lawsin was the attending and admitting physician on Mr. Norwood's final hospitalization, he consulted with Dr. Gallego about Mr. Norwood's care while he was in the hospital and would have deferred to Dr. Gallego's opinion if there was a conflict over the proper care.

Severance Plan

Plaintiff was employed by defendant for thirty-five years and was an automobile claim representative in the Rome office of State Farm's Southern Zone at the time of her retirement. Plaintiff's Team Manager was Bob Collier and her Section Manager was Ray Smith. Smith and Collier were not in the Human Resources Department of State Farm, had no responsibility or authority relating to employee benefits, and had no responsibility relating to the transition plan ultimately approved by State Farm in July 2003.

After plaintiff's husband died in 2002, she began contemplating early retirement. Plaintiff announced her intention to retire in December 2002, but advised defendant that she did not want to retire in the face of a pending reorganization if she was going to be offered a severance package. Plaintiff gave notice of her retirement on December 3, 2002, and officially retired on January 31, 2003.

Plaintiff asserts that she announced her retirement only after she was told that she would not be an impacted employee under the transition plan and would not qualify for the early retirement severance package. She also states that Collier and Smith told her that if she retired and later found out that she was an impacted employee, she would get the severance package anyway.

Collier understood that plaintiff decided to retire in January 2003 be cause she had reach ed the normal retirement age, her personal situation had changed with the death of her spouse and for her own health reasons. In her exit interview, conducted shortly before she retired, plaintiff's stated reasons for retirement were (1) she was "64 years old and ready to retire" and (2) her "workload was increasing." Plaintiff also stated many complaints about State Farm and certain members of her management team, including Smith, and stated that there was nothing State Farm could do to change her mind about retiring. Though benefits were discussed in the exit interview, plaintiff did not mention the alleged statements of Collier and Smith regarding the plaintiff's ability to obtain severance benefits after she retired.

At the end of 2002 and beginning of 2003, State Farm was in a period of reorganization. During this period, speculation about whether the Southern Zone would implement a transition plan and which employees and off ices might be impacted by such a plan was rampant, and transition rumors were discussed among various employees in the Rome office.

As part of the reorganization, the Southern Zone was considering whether to propose a transition plan to offer early retirement opportunities. On December 2, 2002, plaintiff emailed Rick Albritton, Human Resources Manager for the Southern Zone at the time, and asked if any early retirement plans would be offered to claim representatives in her area. Mr. Albritton replied to plaintiff's email and stated that he would not know anything about transition plans for claim representatives until afer new leadership was put into place for the Zone in February. He further stated his opinion that the earliest possible approval of a transition plan would be August 1, 2003, with a retirement date of November 1, 2003. Plaintiff and Albritton did not communicate again after this email regarding retirement opportunities. Plaintiff never contacted Albritton about statements allegedly made to her by Collier and Smith, nor did she ask Albritton why these statements differed from the information he provided to her. The morning after her mail exchange with Albrittan, plaintiff submitted written notice of her retirement.

The Southern Zone's Transition Plan was developed over several months using a multi-level review and recommendation process. The process began as a study of the structure of the Southern Zone. Multiple study committees were appointed in or around December 2002 to study the current structure of their respective departments. The study committee members did not have authority to make final determinations regarding the contents of the transition plan. The studies did not begin until January 2003, after Albritton wrote his email to plaintiff, and continued through February 2003. New leadership for the Southern zone was put into place on February 3, 2003.

The study committees worked with a small transition committee to develop suggestions and ideas regarding a potential transition plan and those suggestions and ideas were presented to the Southern Zone Executive Office. The transition committee did not have authority to make final determinations regarding the contents of the transition plan. The Southern Zone Executive office would evaluate and comment on the recommendations; in response to these comments, the study committees conducted additional reviews and subsequently presented revised suggestions and ideas to the transition committee and the Southern Zone Executive Office. This process occurred during late February and March 2003.

Prior to late February 2003, the Southern Zone had considered only how the reorganization would affect the structure of the organization. Ideas and suggestions regarding the content of any transition plan, including whether any such plan might impact claim representatives, had not yet been discussed, and no specific proposals had been made. After the study committees concluded their work, the transition committee created a draft transition plan incorporating the recommendations of the study committees into a template created by corporate headquarters. The draft transition plan was submitted to the Southern Zone Executive Office for its review and approval in April 2003. The draft plan included claim representatives in the class of impacted employees but was not an effective plan.

The draft plan was approved by the Southern Zone Executive Office in late April 2003 and was subsequently submitted to the Chairman's Council in Bloomington, Illinois on May 1, 2003. The plan was approved by the Chairman's Council and thereby became effective in early July 2003, and State Farm officially announced the plan for the first time in early July 2003. Prior to July 2003, State Farm made no official announcements concerning the plan and distributed no information about the plan.

Approximately 3000 employees were impacted by the transition plan. All of the impacted individuals were employed by State Farm on the date the transition plan was approved by the Chairman's Council and State Farm did not provide severance benefits under the plan to any person who retired prior to July 2003. State Farm made no decisions regarding the transition plan at any time between December 2002 and January 31, 2003.

On February 20, 2004, over one year after she retired, plaintiff inquired for the first time about severance benefits. Plaintiff subsequently sent a letter requesting severance benefits. By letter dated March 4, 2004, State Farm denied plaintiff's request for benefits for the stated reason that she' was not identified as an impacted employee in an approved transit ion plan at the time she retired.

Discussion

AD D Benefits

Plaintiff seeks benefits under the ADD plan, which provides benefits for accidental injuries, defined as "bodily injury which results, directly and independently of all other causes, from accident. . . ." The Eleventh Circuit has construed the "directly and independently" language to mean that recovery is precluded when any disease or pre-existing condition substantially contributed to the death, even if accident is "the immediate cause in that it triggered" the death. Dixon v. Life Insurance Co., 389 F.3d 1179, 1184-85 (11th Cir. 2004).

In reviewing an administrator's denial of benefits, the Eleventh Circuit has established "a multi-step approach for use in judicially reviewing virtually all ERISA plan-benefit denials." Willams v. BellSouth Telecommunications Inc., 373 F.3d 1132, 1137 (11th Car. 2004). First, the district court must "apply the de novo standard to determine whether the claim administrator's benefits-denial decision is wrong (i.e., court disagrees with the administrator's decision)." Id. at 1138. If the district court agrees with the administrator, it must affirm the decision. Id. However, if the district court finds the decision "wrong," and the administrator was vested with discretion in reviewing claims, then [the court must] determine whether "reasonable" grounds supported it. Id. If no reasonable grounds exist, the decision must be reversed, but if the decision was reasonable, the court must determine whether it was made under a conflict of interest. Id. When a decision is reasonable but made under a conflict of interest, then the court must apply heightened arbitrary and capricious review to the decision. Id.

Having reviewed the record, the court finds that plaintiff fails to present a question of fact as to whether the decision to deny benefits was de novo wrong. The official cause of Mr. Norwood's death was "cardiac arrest due to or as a result of sepsis." The sepsis resulted from C.diff. colitis, diverticulitis/ischemic colitis. Both diabetes mellitus and end stage kidney failure were identified as "significant conditions" contributing to death. Neither the death certificate nor the death summary mention accident, the stubbed toe or the cellulitis infection of the foot as a cause of death. Furthermore, Dr. Gallego described the foot infection as a "diabetic foot infection" and testified that "you can only get a diabetic foot infection if you are diabetic." While Dr. Lawsin later wrote a letter stating that "the accidental injury to his great toe and the infection resulting therefrom . . . was in fact the direct cause of Mr. Norwood's death" and that Mr. Norwood would still be alive today "but for the injury to his great toe," this letter does not create a question of fact as to whether Mr. Norwood's pre-existing conditions li "substantially contributed" to his death.

Even assuming that the decision was de nova wrong, the court finds that the decision of the administrator (who undisputedly had the discretion to review the claim) was reasonable. At the time of its initial decision, defendant had received no evidence identifying Mr. Norwood's toe injury as a cause of his death. Even considering the letters from Dr. Gallego and Dr. Lawsin, available at plaintiff's second appeal, the administrative record as a whole does not support a finding that defendant's denial of benefits was unreasonable.

Therefore, the court must determine whether the decision was made under a conflict of interest requiring arbitrary and capricious review. While defendant does not concede that the heightened arbitrary and capricious standard applies to this case, at this summary judgment stage, the court will assume the standard applies. The Eleventh Circuit has not specifically addressed what a conflicted plan administrator must demonstrate to carry its burden in a suit challenging a "wrong but reasonable" factual determination. Cf. Brown v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556, 1566 (11th 1990) (discussing standard for wrong but reasonable plan interpretation). This court concludes that the defendant can meet its burden by demonstrating that the opinions and evidence relied upon in denying the plaintiff's claim were at least as reliable as the conflicting opinions and evidence before it. See Wise v. Hartford Life Accident Insurance Co., 360 F. Supp.2d 1310, 1323 (N.D. Ga. 2005).

Dr. Michael Cochran, on behalf of defendant, conducted a medical review of the records submitted by plaintiff. Defendant also obtained a legal review to determine the applicable law governing the construction of the policy language. This review occurred prior to the Eleventh Circuit's decision in Dixon but its "substantially contributes" standard was acknowledged in the legal analysis. After reviewing an October 18, 2002 letter from Dr. Gallego, the death certificate and medical and legal reviews, defendant denied the claim. An appeals committee, including a physician, an attorney and several life claims personnel reviewed the plan language, the original documentation submitted by plaintiff and a second letter from Dr. Gallego before affirming the denial of benefits.

While plaintiff disagrees with the outcome of defendant's review, plaintiff points the court to no evidence suggesting that defendant failed to actually conduct the review. In fact, defendant provided plaintiff with a second appeal following the submission of plaintiff's letter from Dr. Lawsin. A second appeals committee including a physician, a lawyer and claims personnel reviewed the materials reviewed by the previous appeals committee as well as Dr. Lawsin's letter and again affirmed the denial of benefits.

Plaintiff complains that the decision was arbitrary and capricious because defendant "ignored the medical records" which identify "the stubbed toe as the first cause in the chain of events." Likewise, plaintiff objects to the defendant's rejection of the opinions of Dr. Gallego and Dr. Lawsin as "tainted."

First, there is no evidence that defendant "ignored the medical records." Second, even if defendant disagreed with the conclusions of the treating physicians, the law is clear that an administrator is not required to give any special deference to these conclusions. See Black Decker Disability Plan v. Nord, 538 U.S. 822, 831, 123 S. Ct. 1965, 1970 (2003). Furthermore, courts may not "impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation." Id. at 834, 123 S. Ct. at 1972.

The court finds no question of fact that the opinions and evidence relied upon by defendant were at least as objectively reliable as the evidence promoted by plaintiff. The letter from Dr. Lawsin was prepared by plaintiff's attorney and submitted by Dr. Lawsin several months after Mr. Norwood's death. Conversely, the medical records upon which defendant relied were prepared by Mr. Norwood's treating physicians (including Dr. Lawsin) contemporaneously with his hospitalization and death.

Finally, plaintiff fails to point the court to any evidence raising an issue of fact that defendant did not follow a routine practice in evaluating the claims, that the claims administrator was incompetent or that the reviewers were not qualified to evaluate the medical evidence. See Fick v. Metropolitan Life Ins., 347 F. Supp.2d 1271, 1286 (S.D. Fla. 2004) (citingWilliams, 373 F.3d at 1139). Therefore, for all the foregoing reasons, the court hereby GRANTS defendant's motion for summary judgment as to plaintiff's claim related to ADD benefits.

Severance Plan

Plaintiff seeks benefits pursuant to a severance package offered to certain employees following plaintiff's retirement. According to plaintiff, she was an "impacted employee" under the transition plan at the time of her retirement and she should have been so advised in response to her inquiries to her superiors. Although plaintiff does not specify her theory of recovery, the parties have both treated her claim as one for breach of fiduciary duty.

As an initial matter, the court notes that plaintiff fails to point to any admissible evidence that she exhausted her administrative remedies with regard to the denial of her claim for severance benefits. For the purpose of this motion for summary judgment, however, the court will assume she exhausted her administrative remedies and will consider the parties substantive arguments regarding her claim.

Defendant argues that (1) the only statements upon which plaintiff could reasonably have relied were not misleading, (2) the statements of Collier and Smith are not actionable misrepresentations, and (3) the transition plan was not under serious consideration by defendant at the time the statements were made.

As the plan administrator, defendant is an ERISA fiduciary to the extent that it functions in its capacity as a plan administrator. 29 U.S.C. § 1002(21)(A); Barnes v. Lacy, 927 F.2d 539, 544 (11th Cir. 1991). As a fiduciary, defendant has a duty to speak truthfully to plan beneficiaries in the performance of its fiduciary functions. Fischer v. Philadelphia Elec. Co., 96 F.3d 1533, 1538 (3rd Cir. 1996), cert. denied, 520 U.S. 1116, 117 S. Ct. 1247 (1997). ERISA does not impose a "duty of clairvoyance" on fiduciaries and does not require them to make precise predictions about future changes to its plan. Taylor v. Peoples Natural Gas Co., 49 F.3d 982, 986 (3rd Cir. 1995).

In order for defendant to be liable for statements of individual employees, the employees must be "those employees on whom plan participants reasonably rely for important information and guidance about retirement." Taylor, 49 F.3d at 988. The employees must have actual or apparent authority to provide information and guidance to plan participants on behalf of defendant. Id. at 988-89. Therefore, any statements by Collier or Smith are not actionable because it is undisputed that they were not authorized to provide plan information.

Furthermore, defendant can only be liable for the statements if the implementation of the severance package was under serious consideration at the time the statements were made. Barnes, 927 F.2d at 544. Plaintiff points to no evidence which creates a question of fact as to whether the statements of Albritton were untruthful or that the severance plan identifying claims representatives as impacted employees was under serious consideration at the time the Albritton statements were made.

It is undisputed that defendant was merely gathering information from January through early February 2003 and from late February through March 2003 was merely analyzing options and ideas. A draft transition plan identifying claim representatives as impacted employees was not prepared and submitted to the Southern Zone leadership, who were responsible for submitting the plan to corporate headquarters for final approval, until April 2003.

Therefore, the court finds that plaintiff fails to point the court to any evidence creating a question of fact as to whether defendant breached a fiduciary duty with regard to the severance package. Accordingly, defendant's motion for summary judgment is GRANTED as to plaintiff's claims regarding the severance plan.

Summary

(1) defendant State Farm Mutual Automobile Insurance Company's motion for summary judgment [docket no. 51] is GRANTED;

(2) plaintiff's motion for oral argument [docket no. 58] is DENIED;

(3) defendant State Farm Mutual Automobile Insurance Company's motion to strike [docket no. 64] is GRANTED AS UNOPPOSED.

SO ORDERED.