Id. at 110. Because O'Malley did not participate in the approval, he did not breach his fiduciary duty under § 406. See Schulist v. Blue Cross of Iowa, 553 F. Supp. 248, 254 (N.D.Ill. 1982), aff'd 717 F.2d 1127 (7th Cir. 1983) (explaining that § 406 is "inapposite" when fiduciary has not caused the Plan to engage in a prohibited transaction). The insurance companies covered the loss caused by the breach of fiduciary duty by the six trustees who authorized the payment of O'Malley's fees.
Under the circumstances, we consider that the Plan as a party, then, comes under the ERISA definition of a "fiduciary," despite the fact that the Plan has entered into a separate agreement with an Ohio bank as trustee to provide for the holding of funds and for making distributions as directed by the Board of Administrators. See Monson v. Century Mfg. Co., 739 F.2d 1293, 1303 (8th Cir. 1984); Schulist v. Blue Cross of Iowa, 717 F.2d 1127, 1131 (7th Cir. 1983), aff'g, 553 F. Supp. 248 (N.D.Ill. 1982); Leigh v. Engle, 727 F.2d 113, 133 (7th Cir. 1984); U.S. Steel Corp. v. Pennsylvania Human Rights Commission, 669 F.2d 124, 127 (3d Cir. 1982). We conclude that the Plan has filed suit as a fiduciary, as it had the authority to do, in its counterclaim against Saramar. There was jurisdiction under ERISA, 29 U.S.C. § 1132, for the district court to entertain this controversy as if the action had originally been filed in that court.
The plaintiffs, trustees of the Pattern Makers' Health and Welfare Trust ("Trustees," "Trust"), sued Blue Cross of Iowa and Blue Shield of Iowa ("BC" and "BS") alleging breach of contract, breach of fiduciary duty under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., and fraud. The district court, 553 F. Supp. 248, granted defendants' motions for summary judgment as to the contract and ERISA claims and remanded the pendent state law fraud claim to Iowa state court following dismissal of the federal claims. The Trust has appealed the summary judgment as to the contract and ERISA claims.
. See also Schulist v. Blue Cross of Iowa, 553 F.Supp. 248, 254-55 (N.D. Ill. 1982), aff'd 717 F.2d 1127 (7th Cir. 1983) (“The silence of the contract with regard to any premium surplus does not constitute an ambiguity, but rather, indicates that the parties agreed to no refunds.”).
Ruble v. UNUM Life Ins. Co., 1989 U.S. Dist. LEXIS 17931, 9-10 (W.D. Mich. May 17, 1989). See, e.g., Benvenuto v. Connecticut General Life Insurance Co., 643 F. Supp. 87, 90 (D.N.J. 1986); McLaughlin v. Connecticut General Life Ins. Co., 565 F. Supp. 434, 441 (N.D. Cal. 1983); Schulist v. Blue Cross of Iowa, 553 F. Supp. 248, 252 (N.D. Ill. 1982), [*10] aff'd, 717 F.2d 1127 (7th Cir. 1983); Eversole v. Metropolitan Life Insurance Co., 500 F. Supp. 1162, 1165 (C.D. Cal. 1980). Here, the insurance company has discretionary responsibility related to claims and is, therefore, the fiduciary.
Section 1002 is clear in stating that an entity is a fiduciary to the extent that it does exercise such authority. See also Schulist v. Blue Cross of Iowa, 553 F. Supp. 248 (N.D.Ill. 1982), aff'd, 717 F.2d 1127 and 1131 (7th Cir. 1983). The record indicates that Connecticut General did determine whether to pay plaintiff's claim and in fact issued the check that covered some of plaintiff's claims.
Therefore, a violation of § 1104 fiduciary standards must be based on a showing of bad faith or some other indicia of arbitrary and capricious action. Id. and Schulist v. Blue Cross of Iowa, 553 F. Supp. 248 (N.D.Ill., 1982). The Court's earlier finding that the proposed amendments to the pension plan, inherent in the terms of sale, do not violate ERISA's vesting and non-forfeitability provisions precludes any contention that a fiduciary duty was breached on the basis that some pension "obligation" will be limited or forfeited if the terms of sale are approved.
Therefore, a violation of § 1104 fiduciary standards must be based on a showing of bad faith or some other indicia of arbitrary and capricious action. Id. and Schulist v. Blue Cross of Iowa, 553 F. Supp. 248 (N.D.Ill. 1982). The Court's earlier finding that the proposed amendments to the pension agreement, inherent in the terms of sale, do not violate ERISA's vesting and non-forfeitability provisions precludes any contention that a fiduciary duty was breached on the basis that some pension "obligation" will be limited or forfeited if the terms of sale are approved.