Opinion
CASE NO.: CV 05-03612 ABC (RCx).
December 8, 2006
FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: ERISA APPEAL
This case is an appeal from a denial of disability benefits under a plan subject to ERISA. The standard of review in this case is de novo. As such, the court may consider evidence outside the Administrative Record ("AR"). Mongeluzo v. Baxter Travenol Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir. 1995), Abatie v. Alta Health Life Ins., 458 F.3d 955, 970 (9th Cir., 2006). In addition to the AR, the Court will consider the deposition testimony of Dr. Robert Marks taken on May 5, 2006, to which Defendants have not objected. However, the Court will not consider the deposition testimony of Peter Strang taken on February 10, 2006 in the action entitled Kathy McMahon v. Continental Casualty Company, Civil Action No. 05-01292 CRB (N.D. Cal.). Having considered the evidence submitted and the arguments of counsel, the Court ENTERS the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a):
I. FINDINGS OF FACT
A. Background
1. Plaintiff Willow Rorabaugh ("Plaintiff") was employed as a Branch Office Administrator ("BOA") for Edward Jones Co., a brokerage company. (AR 171).
2. In connection with her employment, Plaintiff was enrolled in her employer's short term and long term disability plans. Both the short term disability ("STD") and long term disability ("LTD") plans were administered by Continental Casualty Company ("CCC"). (AR 438).
3. During the last stage of her appeal, Plaintiff was advised that the obligation of CCC had been assumed by Hartford Life Insurance Company ("Hartford"). (AR 058).
B. Plaintiff's Initial Disability
C. Plaintiff's Initial Claim for Benefits
4. On or about April 22, 2003, Plaintiff had back surgery performed by Dr. J. Patrick Johnson for spinal stenosis and applied for short term disability benefits. (AR 004, see also 177).
5. On May 2, 2003, Edward D. Jones Co. faxed CCC the paperwork required to initiate a claim. (AR 017-21).
6. At the time Plaintiff's claim arose, Edward D. Jones Co. maintained a comprehensive, multi-benefit ERISA plan that included all insured and self-funded benefit programs, including short-term disability ("STD") and long-term disability ("LTD"). (AR 336-40)
7. For both STD and LTD coverages, the term "total disability" is defined as:
"Being totally disabled means that, during the benefit waiting period and for the duration of your disability period, you are not able to perform the substantial and material duties of your regular job. For STD claims, your disability must result from a non-work related illness or injury. For LTD claims, your disability may result from any illness or injury. Total disability also means that you are not doing any other work for wages or profit for which you are, or may reasonably become, fitted by education, training or experience." [emphasis added] (AR 391).
8. The "Physical Demands Analysis" submitted by Edward D. Jones Co. described Plaintiff's position as requiring two hours of sitting at one time, and working with a computer, calculator and telephone. The job required climbing, stooping, kneeling and crouching. Both right and left hands were required for grasping and 100% finger dexterity was required. Upper extremity range of motion was also required, as was occasional twisting, reaching and bending. (AR 171-72).
9. Plaintiff's application for short term disability benefits was certified for 42 days, to June 2, 2003. CCC determined 42 days was the "usual duration" for a claim of plaintiff's nature. CCC did not request or review any medical records when it certified Plaintiff's disability benefits for this period of time. (AR 095).
10. On May 29, 2003, four days before her benefits ceased, Plaintiff's physician, Dr. Mark Wolgin, referred her to physical therapy for her back surgery. (AR 234).
11. The initial consult with the physical therapist in June 2003, noted that Plaintiff had "significant left upper extremity involvement in addition to the involvement with the left lower extremity. Plaintiff's left arm exhibited "cog-wheel" type rigidity and intention tremor. It was recommended that Plaintiff undergo neurological testing. (AR 235).
12. Plaintiff continued to receive physical therapy, at least three times a week from June to October 2003. Symptoms experienced by Plaintiff in July 2003 included increased shaking of her left upper extremity, fatigue and tremors. (AR 226).
13. On July 17, 2003, it was noted that Plaintiff had spasticity, rigidity and intention tremors in both her lower and upper left extremities. (AR 228).
14. By August 2003, physical therapy notes indicated that Plaintiff was having difficulty walking, which was improved after lying down. Her left arm exhibited weakness, tremors, and loss of dexterity. (AR 239).
15. On August 8, 2003, Plaintiff called CCC and advised that she had not returned to work in early June. As of this date, Plaintiff would have been eligible for long term disability benefits under the Plan. CCC did not send any long term disability claim forms to either Plaintiff or her employer. (AR 006).
16. Instead, CCC called Plaintiff's orthopedic surgeon, Dr. Johnson and left a message that medical records were needed. No medical information was received. (AR 006).
17. The claim was "closed" on or about August 13, 2003. Plaintiff did not receive notice of the closure. (AR 006).
18. Plaintiff was first seen on September 25, 2003 by neurologist, Dr. Mary Dyes. Plaintiff had trouble walking, shuffled when walking, her left leg was stiff and rigid, and she could not lift. Dr. Dyes's preliminary diagnosis was that Plaintiff had Parkinson's disease. Dr. Dyes's opinion on that date stated that Plaintiff should remain on Total Disability. (AR 108-110, 204-06).
19. On October 16, 2003, Plaintiff again consulted with Dr. Dyes. She showed significant improvement by ambulating without a cane after taking the medication prescribed by Dr. Dyes during her first visit. Dr. Dyes recommended that Plaintiff stay on temporary disability until her symptoms had resolved adequately to return to work or until it was determined that she was not able to return to work. (AR 203).
20. In December 2003, Plaintiff submitted a claim for long term disability, explaining that she had never returned to work after her back surgery and that she had been diagnosed with Parkinson's Disease. (AR 249-50).
21. Plaintiff also advised that she had major weakness on her left side, she could not sit more than one hour or stand more than fifteen minutes and that she had to lie down every few hours. Further, Plaintiff explained upon inquiry from CCC that her job allowed her to sit or stand when needed but she was having problems performing her job with her condition even before her surgery. She was not able to sit, had tremors and it was hard to work with people. (AR 05).
22. The December 16, 2003 Attending Physician Statement submitted by Dr. Dyes, together with Plaintiff's claim form, confirmed Plaintiff's report of her symptoms. Dr. Dyes reported that Plaintiff had left-sided stiffness, tremor, gait disturbance and shuffling. These symptoms were all listed as objective findings. While the form did not request an evaluation of Plaintiff's ability to endure prolonged sitting, Dr. Dyes did state that she was limited to standing not more than thirty minutes at a time. Dr. Dyes advised that Plaintiff cease work and listed her prognosis as "fair." (AR 224-25)
23. On December 23, 2003, CCC requested that Dr. Dyes complete a Functional Assessment Tool ("FAT") form, assessing plaintiff's capability of performing full time work, even if she was primarily seated with flexibility to stand or sit. (AR 09).
24. On the FAT form completed on February 27, 2004, Dr. Dyes stated that Plaintiff was not capable of performing full time work which was primarily seated, with flexibility to stand as needed. Dr. Dyes also stated that Plaintiff could not lift more than five pounds, could not engage in repetitive tasks using her hands, no reaching and no writing for more than ten minutes at a time. She could not sit for more than thirty minutes at a time and could not stand or walk for more than fifteen minutes. Dr. Dyes also stated that Plaintiff's return to work date be July 1, 2004. (AR 104-07, also at 200-03).
25. On or about May 26, 2004, CCC Nurse Case Manager Cheryl Fox, upon review of Plaintiff's medical records, concluded that Plaintiff's condition did not prevent her from returning to work. The nurse partly referred Dr. Dyes's November 13, 2003 and January 8, 2004 office notes (included as part of the FAT report) but only referenced the portion which stated Plaintiff had improved and was able to ambulate without a cane. The CCC nurse ignored Dr. Dyes' notation that Plaintiff was not capable of performing full-time work and that her anticipated return to work date was July 1, 2004. (AR 029, 104).
26. In its denial letter dated May 26, 2004, CCC concluded that Plaintiff was able to work because her job is "primarily seated with the option to sit and stand when needed" and because she was right-handed, the problems with her left hand should not preclude her return to work. (AR 029, 048).
27. On September 29, 2004, plaintiff appealed. She advised that her back problems (which necessitated the original surgery) caused debilitating pain and that her recent Achilles tendon problems would require surgery, which would place her in a cast for two months. Further, her Parkinson's disease caused fatigue and significant "off periods" during which she was unable to walk very well. Plaintiff concluded by stating that all three problems were debilitating in their own right but that combined, they were more than she could manage in a non-work environment, much less in the workplace. (AR 064-65, 169-70).
28. On appeal, Hartford referred the claim to University Disability Consortium ("UDC") for medical review. (AR 165-66).
29. UDC referred the matter to Dr. Robert Marks, who submitted a report on November 11, 2004. He never examined, met with, or talked to the Plaintiff. (AR 140-43).
30. Instead of inquiring whether Plaintiff could perform "her occupation" (the applicable standard under the Policy), Hartford/UDC asked Dr. Marks to determine whether Plaintiff's "functionality" was at the "heavy, medium, light, or sedentary" level. (AR 075, 094).
31. Dr. Marks testified that his medical opinion was not based on any specific job, but rather, his opinion was based upon Plaintiff's ability to perform "any sedentary" job. (Marks Deposition, p. 44).
32. In rendering his opinion, Dr. Marks only mentioned two reports of Plaintiff's neurologist and did not refer at all to Dr. Dyes's February 2004 Functional Assessment, which had been specifically requested by CCC. Instead, Dr. Marks summarized Dr. Dyes's December 16, 2003 Attending Physician Statement as reporting that the physical limitations were specified as no lifting greater than 10 pounds, and standing for 30 minutes at a time, with 5 minutes to sit. Dr. Marks's report failed to note that the same Statement documented symptoms of left-sided stiffness, tremor, gait disturbance and shuffling. (AR 073-76).
33. While Dr. Marks admitted Plaintiff had rigidity and slowness in her left side and that she needed a cane, he opined it "probable" that as of June 2, 2003, Plaintiff could "carry out tasks at the sedentary level of effort." (AR 076).
34. Dr. Marks concluded that the "the documentation" did not reveal what types of repetitive movements were possible, but because there was slowness on the left side, activities requiring "rapid repetitive movements" of Plaintiff's left upper limb would be limited. (AR 075-76).
35. Hartford notified Plaintiff in a letter dated November 12, 2004 that the responsibility for the administration of her claim had been transferred from CCC to Hartford and that Hartford had decided to uphold the decision to deny Plaintiff's benefits. There were no further appeal rights given to Plaintiff. (AR 058, 061, also 146-149).
36. On December 9, 2004, Plaintiff wrote to Hartford, asking for a copy of her entire file. (AR 120).
37. Hartford acknowledged receipt of this letter shortly thereafter, and sent a copy of the file to Plaintiff under cover of December 28, 2004. (AR 57, 43).
38. On February 17, 2005, the California Department of Insurance notified Hartford of a complaint filed by Plaintiff. The Department asked that Hartford respond directly to Plaintiff within 21 days, with a copy of its letter sent to the Department. (AR 52).
39. Hartford responded directly to Plaintiff on February 28, 2005, copying its letter to the Department. (AR 41-42).
40. The instant action followed.
1. The termination of Plaintiff's short-term disability benefits was made on the basis of "usual duration" guidelines for back surgery. The Duration Guidelines contain qualifications that should have caused reconsideration when there are complications or co-morbid conditions. In this case, Plaintiff did develop such complications when she was recovering from surgery. She did not recover as anticipated and upon referral to a neurologist as a consequence of her complications, Plaintiff was diagnosed with Parkinson's Disease. (AR 04, 17, 21, 234, 235, 06, 110, 202).
2. The contemporaneous treatment notes all documented continuous walking difficulties, tremors, fatigue and left-sided rigidity. (AR 04, 17, 21, 234, 235, 06, 110, 202).
3. In this case, the occupational impairment was serious because Plaintiff was required to type, grasp, reach, bend, stoop and sit for two hours at a time. (AR 171-72).
4. Plaintiff's employer's Plan, of which Plaintiff is a participant, gauges disability based solely upon a "regular job" standard. (AR 391).
5. During this litigation, Plaintiff took the deposition of Dr. Marks to inquire what standard he actually used in ascertaining that Plaintiff could "probably" perform some "sedentary tasks." Dr. Marks testified that he did not consider Plaintiff's actual job requirements but instead utilized the barest minimum ability to perform "any sedentary job," meaning the ability to sit for thirty minutes at a time, with breaks. This standard was erroneous as a matter of law. (Marks Depo. 44-45).
6. Dr. Marks also conceded at his deposition that certain aspects of Plaintiff's job, i.e., sitting for two hours at a time, reaching and stooping exceeded the criteria he utilized when determining that Plaintiff had some sedentary capabilities. Dr. Marks further testified that the restrictions he found in prohibiting "rapid repetitive movements" of Plaintiff's "left limb," as described in his opinion, would include her left hand. (Marks Depo. 26, 44-45).
7. Defendants selectively reviewed the evidence and then evaluated Plaintiff's condition based upon a fabricated "any sedentary occupation" standard.
8. Hartford did not follow internal administrative requirements when it investigated Plaintiff's disability based on a "sedentary" work capability as opposed to her job. A "Best Practices" Memo on the interpretation of the "own occupation" phase of disability requires consideration of the employee's material duties as reported by the employer. (Declaration of Chandler, Ex. D, p. 418). Plaintiff's employer responded that Plaintiff was required to sit for two hours a time, bend, twist, stoop, use a computer and telephone and interface with the public. Hartford disregarded these requirements and instead based its decision on whether Plaintiff could perform "any sedentary" job. (AR 094).
9. Moreover, Hartford's own internal Initial Investigation Protocols requires a claim representative to obtain medical records and conduct a "detailed" assessment of the claimant's ability to perform activities of daily living prior to a termination of benefits. The same Investigation Protocol also specifically requires a consideration of "co-morbid conditions and age." However, there was not such detailed assessment or review of medical records in Plaintiff's case by CCC when it initially terminated Plaintiff's benefits.
10. This summary, as well as the Court's earlier findings, reveal that Defendants had ample evidence of Plaintiff's disability between June and November 2003. Plaintiff has been treated by at least three board-certified physicians, Drs. Wolgin, Johnson and Dyes, who were Plaintiff's treating or attending physicians at the time that Plaintiff suffered from a medical condition that renders her unable to work in her occupation at the time of disability, as a BOA. The May 2003 recommendation for physical therapy by Dr. Wolgin, the back surgery performed by Dr. Johnson, the symptoms exhibited during physical therapy beginning June 2003, Dr. Dyes's notes and opinions as well as her Attending Physician Statement, Functional Assessment Tool form and Dr. Dyes's certification that Plaintiff was completely disabled all indicate a continuing back disability, Achilles tendon bone spur and Parkinson's disease. They are remarkably consistent with regard to the symptoms Plaintiff experiences as well as the effect that those symptoms would have on her ability to perform her job.
11. The only support for Defendants' position came from a review of Plaintiff's records by a CCC nurse manager and Dr. Marks's report. However, Dr. Marks used an incorrect occupational standard and never personally examined Plaintiff. Moreover, Dr. Marks's report did not even discuss the FAT completed by Plaintiff's neurologist, Dr. Dyes.
12. The Court notes that inasmuch as any such hierarchy can be established between conflicting opinions of physicians as to a single patient, the Court gives the greatest weight to Drs. Dyes, Johnson and Wolgin, who have spent some amount of time with Plaintiff and assessed her symptoms over time.
13. The clear weight of evidence under the de novo standard therefore establishes Plaintiff's total disability under the terms of the policy, which is whether Plaintiff can perform "the substantial and material duties of your regular job".
14. Accordingly, the Court concludes that Plaintiff met the definition for "Total Disability" at he time that her benefits were terminated on June 2, 2003. Therefore, CCC's decision to terminate benefits was wrongful, as was Hartford's upholding of CCC's decision.
15. Plaintiff is entitled to reinstatement of her benefits for the period from June 2, 2003 until the present.
16. Plaintiff is entitled to continued payment of those benefits for as long as is appropriate under the policy.
17. The amount of accrued benefits to which Plaintiff is entitled should be included in Plaintiff's [Proposed] Final Judgment, to which Defendants may then respond.
18. The amount of prejudgment interest should also be set forth in Plaintiff's [Proposed] Final Judgment (See Conclusions of Law, below).
19. Any conclusion of law which is deemed a finding of fact is incorporated herein by reference.
"Cogwheeling" has been described as an alternate rigidity and relaxation of the limb, "like a catch, gives way, a catch, gives way . . ." (Deposition of Dr. Marks, p. 33).
The Court notes the prolonged discovery dispute as to the Defendant's internal protocols. In fact, the defendant was ultimately held in contempt for its refusal to turn over certain internal documents ordered by the Court. However, the Court specifically finds that its decision in favor of Plaintiff would be the same without consideration of the documents referred in Finding No. 8 and 9.
The Court gives no credibility to the record review performed by CCC's nurse manager, Cheryl Fox.
Consistent with the ruling in Black Decker Disability Plan v. Nord, the Court has taken only the facts of this case into account in assessing the credibility of the various physicians. 123 S. Ct. 1965 at 1970-71 (2003).
II. CONCLUSIONS OF LAW
1. This is a claim for benefits under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq.; a participant may recover under 29 U.S.C. § 1132(a)(1)(B).
2. This Court has jurisdiction pursuant to 29 U.S.C. § 1132(e) and (f), and venue is proper under 29 U.S.C. § 1132(e)(2).
3. "[A] civil action may be brought . . . by a participant or beneficiary . . . to recover benefits due to h[er] under the terms of h[er] plan, to enforce h[er] rights under the terms of the plan, or to clarify h[er] rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B).
4. This section of ERISA provides for: disbursement of accrued benefits, a declaratory judgment that the participant is entitled to benefits under the plan, and/or an injunction to prevent the plan administrator from wrongly refusing to pay benefits in the future. See, e.g., Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 146-47 (1985); Durham v. Health Net, 1995 WL 429252, *2 (N.D. Cal. 1995).
5. Plaintiff bears the burden of proof in this case by a preponderance of the evidence.
6. The parties have stipulated that CCC's decision to terminate Plaintiff's disability insurance benefits is subject to de novo review by the Court. See Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir. 1999); Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 114-15 (1989).
7. The Court may consider evidence in addition to the AR when it is "necessary to conduct an adequate de novo review." Mongeluzo v. Baxter Travenol Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir. 1995), Abatie v. Alta Health Life Ins., 2006 WL 2347660 (9th Cir., 2006). Though Kearney establishes that "the record that was before the administrator furnishes the primary basis for review," the Court retains discretion to permit evidence not in the AR when the factual situation warrants it, such as when the veracity or completeness of the AR, or the credibility of the sources from which it was created, are at issue. See, e.g., Kearney, 175 F.3d at 1090-91; Thomas v. Oregon Fruit Products Co., 228 F.3d 991, 997 (9th Cir. 2000) (suggesting that evidence on "credibility of medical experts" might be considered on de novo review of denial); Ellis v. Egghead Software Short-Term and Long-Term Disability Plans, 64 F. Supp. 2d 986, 991 (E.D. Wash. 1999).
8. Plaintiff raised several challenges to the report submitted by Dr. Marks, alleging, inter alia, that Hartford did not request that Dr. Marks render an opinion regarding Plaintiff's ability to perform her regular occupation; that Hartford only requested Dr. Marks to render an opinion as to whether Plaintiff could perform a generic "sedentary" occupation; and that the Administrative Record was unclear regarding whether Dr. Marks was ever given a copy of Plaintiff's job description. Based on these allegations calling into question the credibility of a medical expert upon whose opinion Hartford substantially relied, the Court determined that it was appropriate to consider evidence outside the record, specifically Dr. Marks's deposition testimony.
9. When interpreting the terms of an ERISA plan, a court looks first "to the terms of the plan itself." Nelson v. EG G Energy Measurements Group, Inc., 37 F.3d 1384, 1389 (9th Cir. 1994). Plan terms are interpreted "in an ordinary and popular sense as would a [person] of average intelligence and experience." Evans v. Safeco Life Ins. Co., 916 F.2d 1437, 1441 (9th Cir. 1990); see also Hamner v. UNUM Life Ins. Co. of America, 1997 WL 257515, *4 (N.D. Cal. 1997).
10. "Total disability" is defined in the CCC plan in which Plaintiff was a participant as "Being totally disabled means that, during the benefit waiting period and for the duration of your disability period, you are not able to perform the substantial and material duties of your regular job. For STD claims, your disability must result from a non-work related illness or injury. For LTD claims, your disability may result from any illness or injury. Total disability also means that you are not doing any other work for wages or profit for which you are, or may reasonably become, fitted by education, training or experience." [emphasis added] (AR 391).
11. Plaintiff was suffering from a "Total Disability" under the terms of her policy/plan at the time that her benefits were terminated by CCC (June 2, 2003).
12. CCC wrongfully terminated Plaintiff Miller's benefits.
13. Under ERISA Plaintiff is entitled to "recover benefits due to h[er] under the terms of h[er] plan . . ." 29 U.S.C. § 1132(a)(1)(B). Plaintiff's damages with respect to her benefits due are equal to the missed disability benefits over the period from June 2, 2003 until the present.
14. Plaintiff is also entitled to a declaration of her "rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). The Court has determined that Plaintiff was "Totally Disabled" when CCC wrongfully terminated her benefits on June 2, 2003. She is therefore entitled to benefits under her policy as determined by its terms.
15. Plaintiff also seeks an award of pre-judgment interest on the award pursuant to the Court's discretion under ERISA.
16. "Whether to award prejudgment interest to an ERISA plaintiff is `a question of fairness, lying within the court's sound discretion, to be answered by balancing the equities." Landwehr v. DuPree, 72 F.3d 726, 739 (9th Cir. 1995) (quoting Shaw v. International Ass'n of Machinists Aerospace Workers Pension Plan, 750 F.2d 1458, 1465 (9th Cir. 1985)). "Among the factors to be considered in determining whether prejudgment interest should be awarded is the presence or absence of `bad faith or ill will.'" Id.
17. The Court makes an explicit finding of "bad faith or ill will" by Defendants in this case. As such, the equities balance in favor of an award of prejudgment interest to Plaintiff.
18. Plaintiff has been deprived of the value of the benefits to which she was entitled for the entire period from June 2, 2003 to the present. As such, CCC and Hartford (and not Plaintiff) have derived benefit from those funds (including interest), and Plaintiff has been forced to bring the present action to recover funds to which she was entitled. As the Supreme Court has often stated, "prejudgment interest `is an element of [plaintiff's] complete compensation." Osterneck v. Ernst Whitney, 489 U.S. 169, 175 (1989) (quoting West Virginia v. United States, 479 U.S. 305, 310 (1987)). There is no evidence that an award of prejudgment interest would unduly burden Defendants, or their respective policy-holders. As such, the Court holds that such an award is appropriate.
19. Defendants having presented no reason to depart from this standard the amount of prejudgment interest will be determined by reference to the 52-week U.S. Treasury Bill rate paid for the period immediately prior to each unpaid benefit. See, e.g., Blanton v. Anzalone, 760 F.2d 989, 992-93 (9th Cir. 1985) (referencing 28 U.S.C. § 1961 and the rate set by the 52-week U.S. Treasury Bill rate); Blanton v. Anzalone, 813 F.2d 1574, 1576 (9th Cir. 1987) (vacating and remanding for calculation of interest in accordance with 52-week U.S. Treasury Bill rate, rather than rate applied by district court, due to failure to articulate "substantial" reason); see also 28 U.S.C. § 1961 (permitting judgment interest).
20. Finally, Plaintiff seeks attorneys' fees and costs pursuant to the Court's discretion under the ERISA statute. See 29 U.S.C. § 1132(g)(1) ("In any action . . . by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs . . .").
21. The Court considers: (1) the degree of the opposing parties' culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of fees; (3) whether an award of fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties' positions. See, e.g., Cline v. The Industrial Maintenance Engineering Contracting Co., 200 F.3d 1223, 1235-36 (9th Cir. 2000) (citing Hummell v. S.E. Rykoff Co., 634 F.2d 446, 453 (9th Cir. 1980)).
22. In applying these "Hummell factors," the Court must "keep at the forefront ERISA's remedial purposes that `should be liberally construed in favor of protecting participants in employee benefit plans.'" McElwaine v. US West, Inc., 176 F.3d 1167, 1172 (9th Cir. 1999) (citations omitted). "We also apply a `special circumstances' rule in which a successful ERISA participant `should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." McElwaine, 176 F.3d at 1172. "A plan participant who prevails in an action to enforce rights under the plan is ordinarily entitled to a reasonable attorney's fee if the participant `succeed[s] on any significant issue in litigation which achieves some of the benefit . . . sought in bringing suit' . . ." Barnes v. Indep. Auto. Dealers Assoc. of Cal. Health Benefit Plan, 64 F.3d 1389, 1397 (9th Cir. 1995) (citations omitted).
23. In this case, the Hummell factors, "liberally construed" in light of the "remedial purposes" of the ERISA statute, weigh in favor of an award of attorneys' fees to Plaintiff. The Court finds sufficient evidence of "bad faith" by Defendants to satisfy the first factor, although "bad faith is not a prerequisite to an ERISA fee award." McElwaine, 176 F.3d at 1173 (citing Smith v. CMTA-IAM Pension Trust, 746 F.2d 587, 590 (9th Cir. 1984)). There is no evidence of any inability to pay by Defendants, such that the second factor weighs in favor of an award. The third factor (deterrence) has significant application to this case, especially in light of Defendants' litigation behavior, which went above and beyond normal litigation tactics and resulted in Defendants being held in contempt for refusal to turn over documents after this Court upheld the Magistrate Judge's ruling that they be disclosed. To the extent that Defendants may be persuaded to more carefully consider future disability claims in light of the result in this case, this factor also weighs in favor of an award. The fourth factor has no obvious application to this case, but in light of the strength of the evidence submitted by Plaintiff and the favorable result achieved by Plaintiff, the fifth factor weighs heavily in favor of an award to Plaintiff of attorneys' fees and costs.
24. Plaintiff is clearly the "prevailing party" in the instant suit, and is therefore entitled to recovery of reasonable attorneys' fees and costs incurred in the litigation.
25. The amount of attorneys' fees and costs to be awarded will be determined on a separate motion therefor to be filed by Plaintiff in accordance with Fed.R.Civ.Pro. 54(d). Any award will be guided by the following principles:
a. This circuit has adopted the hybrid lodestar/multiplier approach used in Hensley v. Eckerhart, 461 U.S. 424 (1983) as the proper method for calculating attorneys' fees in ERISA cases. See Van Gerwen v. Guarantee Mutual Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000).
b. ERISA attorneys' fees ( 29 U.S.C. § 1132(g)(1)) are typically limited to fees incurred in litigation; fees are not typically available for the administrative phase of the claims process. See Cann v. Carpenters' Pension Trust Fund for Northern California, 989 F.2d 313, 315-17 (9th Cir. 1993) (construing statute).
c. There are no enhancement multipliers for contingency fees in ERISA cases. See Cann, 989 F.2d at 317-18.
26. Prior to filing any motion, counsel for Plaintiff and for Defendants should meet and confer on the amount of a total award, prejudgment interest thereon, and on reasonable attorneys' fees.
27. Any finding of fact which is deemed a conclusion of law is incorporated herein by reference.
III. CONCLUSION
Upon de novo review, and a non-jury trial which supplemented the administrative record, this Court holds that Plaintiff Willow Rorabaugh suffers from a "total disability" under the terms of her ERISA plan with Defendant CCC. Defendant Hartford later assumed the obligations of CCC and made the final appeal decision denying Plaintiff benefits. Plaintiff is entitled to recover all past benefits missed since benefits were terminated on June 2, 2003, as well as prejudgment interest on those benefits. Furthermore, Plaintiff shall be entitled to continue to receive her benefits until those benefits should otherwise terminate under the terms of the plan. In addition, this Court finds Plaintiff to be a prevailing party, and thereby entitled to reasonable attorneys' fees and costs, to be determined by separate motion. Finally, the parties are hereby ORDERED to meet and confer regarding the amount of past due benefits and interest, and to SUBMIT to this Court, no later than two weeks after entry of this order, a summary of the calculation of the total award. This shall be in the form of a [Proposed] Final Judgment. The parties are further ORDERED to meet and confer prior to the timely filing of a motion by Plaintiff to determine the amount of attorneys' fees and costs.