Opinion
Case No. 03 C 6785.
April 16, 2004
RULING ON DEFENDANT'S MOTION TO STRIKE
Plaintiff, Jose Roitman, has filed this action to recover disability benefits under a group benefits plan governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., specifically § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B) ("A civil action may be brought by a participant or beneficiary to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan."). Soon after filing, both plaintiff and the defendants, Mount Sinai Medical Center Long Term Disability Insurance Plan and Unum Life Insurance Company of America ("the Plan"), moved for summary judgment. Plaintiff in his motion contends that the Plan's decision that he was not disabled is incorrect and, acknowledging that he did not exhaust his administrative remedies as is generally required, plaintiff contends that he was excused from the requirement or, at the least, the court should remand to allow him to pursue an administrative appeal now. The Plan in its motion contends it is entitled to judgment as a matter of law on the basis that plaintiff failed to exhaust his administrative remedies prior to commencing suit and because the Plan made a correct decision that plaintiff was not disabled. After receiving plaintiff's motion, the Plan moved to strike plaintiff's Local Rule 56.1(a) statement submitted in support of his motion for summary judgment because it includes evidence outside the record considered by the Plan in making its determination on plaintiff's application for benefits and because it does not comply in form with Rule 56.1(a).
It appears to be undisputed that plaintiff was notified on or about October 27, 2000, that his application for long-term disability benefits was denied. The notice further informed plaintiff, "If you intend to appeal this claim decision, you must submit your written appeal, including any new information, within 90 days of the date of this letter. . . ." The notice further advised, "If UnumProvident does not receive your written appeal within 90 days of the date of this letter, our claim decision will be final." Plaintiff did not appeal. He filed this law suit on September 25, 2003.
In its motion for summary judgment, the Plan argues for dismissal of plaintiff's suit because "the Seventh Circuit consistently requires claimants for benefits under ERISA to exhaust all administrative remedies prior to commencing suit." Memo. In Support at 3, citing, inter alia, Zhou v. Guardian Life Ins. Co. of America, 295 F.3d 677, 679 (7th Cir. 2002). Actually, the rule is somewhat more liberal than that, as that court has stated the rule as follows: "[T]he law of this Circuit remains that the decision to require exhaustion as a prerequisite to bringing a federal lawsuit is a matter within the discretion of the trial court and its decision will be reversed only if it is obviously in error." Ames v. American Nat. Can Co., 170 F.3d 751, 756 (7th Cir. 1999) (internal quotes and citations omitted). In practice, however, it appears that district courts are loath to permit additional evidence to be presented for the first time in court for the very reasons the exhaustion rule exists:
Requiring exhaustion of administrative remedies "enhances the ability of plan fiduciaries to expertly and efficiently manage their plans by preventing premature judicial intervention" and assists the courts by ensuring that plaintiffs' claims have been "fully considered" by plan fiduciaries. The exhaustion requirement also gives effect to Congress' apparent intent, in mandating internal claims procedures, to minimize the number of frivolous lawsuits, to promote consistent treatment of claims, to provide a nonadversarial dispute resolution process, and to decrease the cost and time of claims settlement.Wilczynski v. Lumbermen's Mut. Cas. Co., 93 F.3d 397, 402 (7th Cir. 1996). Plaintiff has not cited any cases in which a district court excused exhaustion outside the established exceptions of equitable estoppel, such as where exhaustion would be futile, e.g., Call v. Ameritech Management Pension Plan, No. 01-717-GPM, 2004 WL 483199 (S.D.Ill. March 10, 2004), or where the claimant lacked meaningful access to the Plan's appeal procedures, e, g., Grodesky v. Lucent Technologies, Inc., No. 01 C 5167, 2003 WL 174186, at *4 (N.D.Ill. Jan. 27, 2003). See also Gallegos v. Mt. Sinai Medical Center, 210 F.3d 803, 808 (7th Cir. 2000) (summarizing exhaustion doctrine and exceptions). It is also true, however, that failure to take a timely appeal may be excused under principles of equitable tolling. See Ferguson v. Aetna Life Ins. Co., No. 98 C 1889, 2000 WL 263698, at *5 — 7 (N.D.Ill. Feb. 28, 2000) (equitable tolling is applicable to an ERISA benefit claim because the Seventh Circuit has held that the doctrine applies to all federal legislation, citing Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452-3 (7th Cir. 1991)).
Plaintiff argues that the language of the Plan did not properly warn him that his failure to appeal would foreclose a later law suit (lack of meaningful access) and further that his mental illness prevented him from taking a timely administrative appeal (equitable tolling). Both parties rely heavily on Gallegos. There, the court accepted the plaintiff's argument that language nearly identical to that before this court failed to "put [a casual reader] on notice that an insured's election not to pursue administrative remedies would be used by [the Plan] as a defense to a suit brought in federal court." 210 F.3d at 811. So far, this favors plaintiff. But the court affirmed the dismissal for lack of exhaustion because the plaintiff had not asserted that she relied on this language in deciding not to appeal. Here, likewise, plaintiff has not submitted an affidavit in support of his motion for summary judgment, or in opposition to the motion to strike, stating that he relied on the language. Thus, under Gallegos, there is no equitable estoppel against the Plan.
Making his alternative argument, plaintiff asserts that he was at the time of the denial so depressed that he could not "effectively concentrate and exercise good judgment." This is similar to the facts presented in Ferguson (although plaintiff did not cite the case), where the court reasoned that mental illness could be a basis for equitable tolling. See Ferguson, at *5 (citing Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996)) ("Although the Seventh Circuit has apparently never considered whether a plaintiff's mental illness may be a basis for equitable tolling of an ERISA claim, it has suggested that mental illness may be a basis for the equitable tolling of other statutes. . . .") "Equitable tolling allows a `plaintiff extra time if he needs it;' but if the plaintiff does not need it `there is no basis for depriving the defendant of the protection of the statute of limitations.'" Ferguson, at *5 (quoting Cada, 920 F.2d at 452). In Miller, the plaintiff alleged that his failure to comply with the time limits under a collective bargaining agreement was caused by mental illness. "Adopting the rule used in all other circuits which had then decided the issue, our Court of Appeals observed that a limitation period will be tolled `only if the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them.'" Ferguson, at *5 (quoting Miller, 77 F.3d at 191). From this it is apparent that the plaintiff must prove that because he was unable to manage his affairs and understand and act upon his legal rights, he needed more time to appeal the denial until at least the time he filed his law suit. Again, there is simply no proof in plaintiff's Rule 56.1 statement and supporting materials of his enduring inability to act on his rights. In light of this, it follows that the motion to strike must be granted insofar as plaintiff seeks to submit medical evidence outside the administrative record.
Because the court has found it necessary to review both motions for summary judgment and their supporting materials in ruling on the pending motion to strike, it believes that the litigation will be significantly advanced by denying the plaintiff's motion for summary judgment without requiring a response. The court has already determined that plaintiff has failed to support his motion with respect to equitable estoppel or tolling. As such, he is not entitled either to a remand or to submit additional evidence to this court. The remainder of the plaintiff's motion is his claim that the medical evidence supports a finding of disability. Although it would appear that the failure to exhaust is fatal to plaintiff's claim, the court will call the case for status in order that plaintiff may be given an opportunity to show cause why defendant is not entitled to judgment as a matter of law.
For all of these reasons, the motion to strike [#22] is granted. Plaintiff's motion for summary judgment [#24] is denied. The case will be called on May 6, 2004, at 9:30, at which time the plaintiff may show cause (orally or in writing) why summary judgment should not be granted in favor of the defendants.