“It is not this Court's role, on summary judgment, to declare a victor in the battle of the experts.” See Ho v. Goldman Sachs & Co. Grp. Long Term Disability Plan, Case No. 13-06104, 2016 WL 8673067, at *14 (D.N.J. Oct. 28, 2016). However, I find the debate over the amount necessary to have kept the policy in force to be a red herring.
So too, have in-Circuit district courts. Ho v. Goldman Sachs & Co. Grp. Long Term Disability Plan, 2016 WL 8673067 at *9 (D.N.J. Oct. 28, 2016) (collecting in-Circuit district court cases following Eugene S).
In this district, Judge McNulty found the language "does not unambiguously communicate that Prudential has the power to interpret rules pertaining to benefits awards or denials." Ho v. Goldman Sachs & Co. Group Long Term Disability Plan, No. 13-6104, 2016 WL 8673067, at *7 (D.N.J. Oct. 28, 2016). See also Herbert v. Prudential Ins. Co. of Am., No. 14-2599, 2014 WL 4186553, at *2 (E.D. Pa. Aug. 22, 2014) (holding that the above-quoted language from Prudential's Group Contract "does not inform the beneficiary that Prudential has unlimited discretion. . . . Rather, this statement clearly limits Prudential's discretion to revise the plan document to times when the contract does not conform to state or federal law or regulation.")).
Usually, "decisions are presumptively reviewed de novo . . . [but will] be reviewed for abuse of discretion where the Plan has granted discretionary decision-making authority." Ho v. Goldman Sachs & Co. Grp. Long Term Disability Plan, No. 2:13-CV-6104-KM-MAH, 2016 WL 8673067, at *5 (D.N.J. Oct. 28, 2016); see also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) ("[A] denial of benefits challenged under [§ 502(a)(1)(B)] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." (brackets in original)).