In Allena Burge Smiley v. Hartford Life and Accident Insurance Company, et. al, No. 15-10056 (11th Cir. 2015), the Eleventh Circuit reiterated what Synergy regularly advises clients to do regarding the statutory document request pursuant to 29 U.S.C. 1024(b)(4) – send it to the right place! The first step in properly defending against an asserted subrogation or reimbursement claim from an ERISA plan is making a request for documents pursuant to 29 U.S.C. 1024(b)(4). On July 17, 2015, the Eleventh Circuit in Allena Burge Smiley v. Hartford Life and Accident Insurance Company, et. al, No. 15-10056 (11th Cir. 2015), reaffirms the rule that unless this statutory request is sent to the “plan administrator” no penalties will be assessed.
A proper 29 U.S.C. 1024(b)(4) request is of the utmost importance for two (2) reasons: to obtain the necessary documents to evaluate the strength of the ERISA plan’s recovery rights, and to exert pressure by means of 29 U.S.C. § 1132 (c) (1) (B) penalties.
29 U.S.C. § 1024(b)(4) – The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated.
29 U.S.C. § 1132(c) – Any administrator who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish … within 30 days after such request may … be personally liable … in the amount of up to $100 a day.
29 C.F.R. § 2575.502c-1 – The civil monetary penalty established by … ERISA is hereby increased from $100 a day to $110 a day.
As the Eleventh Circuit found in Smiley, despite arguments that the third-party administrator was a de facto plan administrator, the plan language of the ERISA statute places these responsibilities on the plan administrator alone, not its agents. One bright spot for the plaintiff’s bar is the Court’s affirmation that in order to obtain penalties (where the request was sent to the correct party) there is no need for the plaintiff to demonstrate “prejudice, bad faith, [or] harm” in order to obtain penalties, Byars v. Coca-Cola Co., 517 F. 3d 1256 (11th Cir. 2008); Daughtrey v. Honeywell, Inc. 3 F.3d 1488, 1494 (11th Cir. 1993).