I previously blogged about the 10th Circuit’s decision in Murphy v. DeLoite & Touche and the permissible scope of discovery in claims governed by the Employee Retirement Income Security Act (“ERISA”). (Click here for prior post.) Although many of our local judges in the federal court in Colorado previously allowed at least some discovery sought on behalf of our clients, the gate has clearly been pushed further open. More recently, this office received favorable orders in Erickson v. Lincoln National and Bottoms v. Liberty Life. The decision issued by Magistrate Judge Shaffer in the Bottoms case has been published by Westlaw at 2011WL6181423.

In this case, Liberty Life argued that Plaintiff was not entitled to conduct discovery. Plaintiff’s discovery request sought information concerning the insurance company’s conflict of interest in rendering ERISA claim decisions, information concerning bias of the reviewing physicians retained by Liberty Life to perform a paper review of Plaintiff’s medical records, the incentive pay plans of Liberty Life employees who rendered the claim decision, and related information. Ultimately, the judge concluded Plaintiff was entitled to obtain much of this information from the insurance company.

Finally, after years of pushing this Issue, which required extensive briefing and attendance at numerous hearings, our clients’ rights to seek discovery under our federal rules of civil procedure on behalf of our clients is becoming more and more clear. Such discovery “battles” should be far less contentious in the future. Disability insurance carriers (such as Unum, Hartford, MetLife, Liberty Life, CIGNA, Sun Life, Prudential, Standard, and the others) will be required to produce information which should have always been readily available to Plaintiffs whose benefits have been denied under this biased and tainted method employed by disability carriers in rendering decisions. Judge Shaffer made it clear at the hearing and in his written decision that the days of insurance companies opposing all forms of discovery in these types of cases are over.

Most disability policies will pay benefits if the insured is unable to perform the material or substantial duties of their “own occupation.” However, after two years, the typical group policy definition changes such that an insured must then prove an inability to perform “any occupation.” Most waiver of premium provisions found in life insurance policies define disability as the inability to perform “any occupation.”

If you are pursuing a disability claim under a policy of insurance which you have purchased on your own or have by virtue of your employment, you will want to check your life insurance policy to determine if there is such a waiver of premium provision. If so, and you meet the conditions, you will need to submit a separate claim to the life insurance company (which is often the same company as the disability insurance carrier but not always) for the waiver of premium provision to apply. There are usually time limits on such applicaton.

Please feel free to contact our office if you have any questions regarding such claims or if your life or disability insurance claim has been denied.

A typical AD&D policy will pay a death benefit or benefit for loss of eyesight, a hand or foot (or a combination thereof), due to an “accident.” Such defined losses must occur within a specific time-frame following the accident event, usually between 90 days and one year after the accident causing the loss. Proceeds for the loss of life are payable to a named beneficiary. Proceeds for other losses are paid to the insured individual, if living, otherwise to the beneficiary. AD&D insurance proceeds are payable in addition to any other insurance including a separately obtained life insurance policy. More often than not, AD&D policies are obtained through an individual’s employment and could be covered by federal ERISA laws.

Accidental Death and Dismemberment claims can be denied by the insurance company for a wide variety of reasons. AD&D policies typically exclude coverage for losses which occur due to suicide, surgical treatment for disease or medical infirmity, infection, acts of war, or during travel either on aircraft or motor vehicles. Some policies provide coverage for “loss of use” or paralysis which typically means the total and irrecoverable loss of function of an arm, hand, or leg. Other policies only provide coverage if the body is actually severed.

If you are in a serious accident, you could possibly lose your income. This is especially true if you suffer a loss of a body part. A disability income replacement policy will help ease your financial woes. An AD&D policy provides extra protection. Hopefully, you have both types of coverage. If you find yourself in such a situation, you should determine if you are insured under a AD&D policy which may provide additional financial protection for a covered loss. Feel free to contact the Law Office of Shawn E. McDermott, LLC if you have any questions concerning such coverage or if your accidental death and dismemberment insurance claim has been denied. Our insurance attorneys can assist with your claim denial whether in you find yourself in Colorado or any other state. Please click here to be connected to our contacts page.

This office recently concluded litigation in the case of Leticia Nunez v. Standard Insurance and PERA. Several important rulings on legal issues were obtained from Judge Frank Plaut who was sitting by designation as the district court judge in Kit Carson County. On behalf of Ms. Nunez, we took the position that the short term disability (STD) policy issued by Standard Insurance Company to PERA for the purpose of covering all PERA members contained a definition of disability that did not comply with the definition of short term disability benefits established by state law. More specifically, we argued that the “second prong” of the definition which requires a PERA member to prove not only an inability to perform the essential functions of their own job, but to also show an inability to earn 75% of predisability earnings in some other occupation, should not exist in the policy. The second prong of the definition tracks the language found in PERA Rule 7.45(e). We argued that PERA inappropriately adopted that rule as it was inconsistent with the statutory definition. Judge Plaut agreed.

Additionally, the Court ruled that Standard’s handling of the voluntary, third level of review was done incorrectly. The PERA statutes and rules guarantee that a PERA member whose disability benefit claim has been denied is entitled to a final medical determination to be conducted by a “panel of independent experts.” In Ms. Nunez’s case, the final level of review was performed by one physician. Judge Plaut ruled, as a matter of law, that a review by one physician does not constitute a review by a panel of independent experts. Based upon Judge Plaut’s ruling, Standard Insurance informed our office that it intended to re-conduct the third level of review in two other cases we are currently litigating.

The Law Office of Shawn E. McDermott, LLC is actively pursuing these same and other issues on behalf of other PERA members. We represent these individuals following a denial of benefits by Standard Insurance Company. We have experience representing individuals through the internal appeal process with Standard Insurance and in litigation against Standard and PERA, if necessary.

At issue was Ms. Graham’s claim for long-term disability (LTD) income protection benefits. She was a former employee of the United States Postal Service (USPS). Unlike most LTD plans, Ms. Graham was insured under a plan established by the National Rural Letter Carriers Association (NRLCA), recognized by the USPS as the exclusive bargaining representative for rural letter carriers. The NRLCA procured the group long term disability policy from Hartford. USPS was not involved in those negotiations, nor did it sponsor the plan. Given these facts, the Court concluded that although Ms. Graham was considered a governmental employee of the USPS, the actual plan and policy at issue was obtained by an employee organization, and not the governmental employer. As a result, the plan was not a “governmental plan” and therefore not exempted from ERISA.

Similar to Ms. Graham’s case, my office undertakes an analysis of every new client as to whether ERISA governs the dispute with the plan or the insurance company. The irony is that a plan participant (employee) typically does not want to have their case governed by ERISA if at all possible, even though ERISA was allegedly passed to protect just that individual.

The second legal issue addressed by the Graham decision was whether there exists a right to a jury trial in a claim for benefits under 29 U.S.C. § 1132(a)(1)(B). Following a prior decision in the 10th Circuit, and consistent with many other circuits which have addressed this issue, the Court found that no Seventh Amendment right to jury trial attaches to such a claim.

As a side note, a law enacted in the State of Colorado in August 2008 found at C.R.S. §10-3-1116 specifically states that all claims under an insurance policy are to have that controversy decided by a jury trial, if requested by the Plaintiff. The question remains unanswered whether this recently enacted Colorado law would be preempted by ERISA.

The Law Office of Shawn E. McDermott, LLC has addressed issues similar to those presented in the Graham case. We have represented, and continue to represent, multiple individuals whose disability benefits have been denied including those who were in fact considered to be a governmental plan and thus not subject to ERISA. Please feel free to contact our office if you have any questions concerning the denial of your claim for long term disability benefits under either an individual policy you have purchased on your own or one that you find your self a participant of by virtue of your employment.

As mentioned in an earlier blog, dated June 5, 2008, the Colorado legislature adopted C.R.S. §10-3-1116 which bans the use of “discretionary clauses” within any insurance policy, including group policies, issued in Colorado. We believe this is the first decision issued by a Colorado federal court judge finding that Colorado’s new statute is not pre-empted by ERISA, meaning that it applies to all insurance benefit disputes. Removal of the discretionary clauses from ERISA-governed policies in Colorado results in the court being able to decide on its own whether the insurance company’s decision was right or wrong (know as a de novo standard of review), with no deference being given to the insurance company’s internal decision. This should result in far more equitable and realistic reviews of such denials in the future by Colorado judges. On an unfortunate note, the court ruled that the statute could not be applied retroactively to the case as the insurance denial occurred prior to the enactment of the new statute. Not so good news for Mr. Kohut’s case but a very favorable result for future ERISA disability claims handled by this office in the state of Colorado.

On the second issue, Judge Arguello ruled that discovery could be conducted by Mr. Kohut’s attorneys and the court would look beyond the insurance company’s claim file to determine the seriousness of Hartford Life and Accident Insurance Company’s conflict of interest in rendering determinations (i.e. denying long term disability claims). This office has received many favorable orders on the issue of discovery, including the reported cases of Hoyt v. Prudential Ins. Co. of Am., No. 07-cv-02210-LTB-KLM, 2008 WL 686922 (D.Colo. Mar. 12, 2008) and Jeffryes v. Hartford Life & Accident Ins. Co., No. 05-cv-01770-EWN-CBS, 2006 WL 1186493 (D.Colo. May 4, 2006).

This insurance coverage denial case was initiated in 2002 by State Farm Insurance against the Mezas and three other insurance companies including Farmers, American Family and American Standard. Each of these carriers had denied the UIM claims of the Meza family members for a variety of reasons. The claims against State Farm and Farmers were resolved a few years ago. The final piece of the puzzle against American Family and American Standard was placed by the Colorado Court of Appeals with its decision on July 3, 2008 which affirmed the decision of the trial court from two years earlier. These two companies had improperly and in violation of public policy defined the term “relative” in its insurance policies in such a way to violate Colorado law. After six years of litigation, the Court of Appeals finally agreed with the legal arguments put forth by the Mezas and our office.

As the case was not published pursuant to Rule 35(f) of the Colorado appellate rules, it is reproduced below for interested readers:

COLORADO COURT OF APPEALS
______________________________________________________________________________
Court of Appeals No.: 06CA2667
Weld County District Court No. 03CV573
Honorable Daniel S. Maus, Judge
______________________________________________________________________________
State Farm Mutual Automobile Insurance Company,
Plaintiff,
v.
American Family Mutual Insurance Company and American Standard Insurance Company of Wisconsin,
Defendants-Appellants,
and
Eliberto Meza, Amelia Meza, Sofi Meza, Irene Meza, Rosalinda Chaparro, Flora Quintana, and Angelita Cordera,
Defendants-Appellees.
______________________________________________________________________________

ORDER AFFIRMED
Division V
Opinion by: JUDGE LICHTENSTEIN
Vogt and Graham, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
Announced: July 3, 2008

Harris, Karstaedt, Jamison & Powers, P.C., A. Peter Gregory, Englewood, Colorado, for Defendants-Appellants

The Law Office of Shawn E. McDermott, L.L.C., Shawn E. McDermott, Denver, Colorado, for Defendants-Appellees

Defendant insurance companies, American Family Mutual Insurance Company (American Family Mutual) and American Standard Insurance Company of Wisconsin (American Standard) (collectively the American Family defendants), appeal the order granting the cross-motion for summary judgment in favor of defendant insureds, Eliberto Meza, Amelia Meza, Sofi Meza, Irene Meza, Rosalinda Chaparro, Flora Quintana, and Angelita Cordero(the Meza defendants). We affirm.

The essential facts of the case are not in dispute. On December 7, 2000, Lucia Meza was killed in an automobile accident in which the vehicle she was driving was struck by a vehicle driven by Bernice Swisher. Lucia was insured by plaintiff, State Farm Insurance Company.

The underlying action initially was brought as a complaint for declaratory relief by plaintiff to determine whether the policies at issue in the case could be stacked to determine whether Ms. Swisher’s vehicle was underinsured for purposes of coverage under plaintiff’s policy. After the trial court issued a ruling in favor of the Meza defendants, plaintiff appealed to this court. Upon a stipulation, that appeal was dismissed without prejudice.

Subsequent to the trial court’s determination of plaintiff’s stacking issue, the current issue developed relating to whether Lucia was an‚“insured person” under the insurance policies of Lucia’s daughters, Sofi and Rosalinda. At the time of the accident Sofi and Rosalinda were living at home.

Sofi was a named insured of American Standard and Rosalinda was a named insured of American Standard and of American Family Mutual. Each of these policies provided liability coverage and underinsured motorist (UIM) coverage for an “insured person.” “Insured person” was defined to include a relative living in the same household as the named insured, but only so long as this person, or his or her spouse, did not own a motor vehicle. The American Family defendants denied Sofi’s and Rosalinda’s claims for UIM benefits for the death of their mother, because Lucia owned a motor vehicle.

The Meza defendants and the American Family defendants filed cross-motions for summary judgment and for determination of questions of law. The summary judgment issue before the trial court was limited to whether Lucia was an “insured” as defined under the policies.
The American Family defendants sought an order determining, as a matter of law, that (1) Lucia did not constitute an insured “relative” under their policies because she owned a motor vehicle; (2) the definition of “relative” in the policies was valid under Colorado law; and (3) the policies thus did not provide UIM benefits for Lucia’s death. The Meza defendants sought an order determining, as a matter of law, that the definition of the term “relative” in the policies violated public policy and that the policies must provide UIM coverage for Lucia’s death.

Finding that the definition of the term “relative” and “its related exclusion in the insurance policies of the American Family Defendants [was] void as against public policy,” the trial court granted the Meza defendants’ cross-motion for summary judgment and denied the American Family defendants’ motions. The court reasoned that (1) the legislative declaration and definitional language of the uninsured/underinsured motorist (UM/UIM) statute, sections 10-4-60 1 and -609, as amended in 2003, require coverage of “insureds” and “resident relatives” without regard to their ownership or non-ownership of a motor vehicle; (2) the definition of the term “relative” in the American Family defendants’ policies was more restrictive than that contained in the 2003 statute; (3) a provision that dilutes, conditions, or limits statutorily mandated coverage violates public policy pursuant to DeHerrera v. Sentry Ins. Co., 30 P.3d 167 (Colo. 2001); and (4) the exclusion contained in the definition of “relative” was a vehicle restriction, andvehicle restrictions are against public policy pursuant to DeHerrera.
The trial court certified its order as final pursuant to C.R.C.P. 54(b). The American Family defendants appeal.

The American Family defendants contend that the trial court erred in granting the Meza defendants’cross-motion for summary judgment because, contrary to the findings of the trial court, the definition of the term “relative” used in their insurance policies does not violate Colorado public policy. We disagree.

I.

We first note that this action arises under a former version of the UM/UIM statute, Ch. 92, sec. 1, § 10-4-609(1), 1983 Colo. Sess.Laws 454 (requiring insurers to offer UM/UIM coverage), and the former Colorado Auto Accident Reparations Act (No-Fault Act), Ch. 94, § 13-25-1, et seq., 1973 Colo. Sess. Laws 334 (formerly codified as amended at § 10-4-701, et seq.; repealed effective July 1, 2003, Ch. 189, sec. 1, § 10-4-726, 2002 Colo. Sess. Laws 649). Thus, we agree with the American Family defendants’ contention that the trial court improperly relied on statutory definitions in the 2003 amendments to the UM/UIM statute that were not in effect at the time of the accident. See Pollock v. Highlands Ranch Cmty. Ass’n, 140 P.3d 351, 354 (Colo. App. 2006) (trial court improperly retrospectively applied prospective statute when cause of action accrued before effective date of statute). Nonetheless, because the error does not affect the substance of the trial court’s order, we affirm the order for the reasons discussed below.

Also, unless otherwise noted, all citations refer to these statutes as they existed in time of Lucia’s death.

II.

Our review of the grant of summary judgment is de novo. See A.C. Excavating v. Yacht Club I Homeowners Ass’n, 114 P.3d 862, 865 (Colo. 2005).
Statutory interpretation is a question of law we review de novo. Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo. 2006). When we interpret a statute, our task is to determine and give effect to the legislature’s intent. Colo. Ofice of Consumer Counsel v. Pub. Utils.Comm’n, 42 P.3d 23, 27 (Colo. 2002). When determining legislative intent, we look to the language of the statuteitself and give effect to the statutory terms in accordance with their commonly accepted meaning. Winscom v. Garza, 843 P.2d 126, 128 (Colo. App. 1992). In so doing, we construe the statute as a whole in an effort to give consistent, harmonious, and sensible effect to all of its parts in accordance with the presumption that the legislature intended the entire statute to be effective. Minh Le v. Colo. Dep’t of Revenue, ___ P.3d ___, ___ (Colo. App. No. 07CA0729, May 29, 2008). Furthermore, in construing the different statutory provisions concerning the same topic or having the same general purpose, we must give effect to the legislative purpose of all such provisions. See Walgreen Co. v. Charnes, 819 P.2d 1039, 1043 (Colo. 1991).

Finally, the interpretation of an insurance policy presents a question of law we review de novo. Massingill v. State Farm Mut. Auto. Ins. Co., 176 P.3d 816, 820 (Colo. App. 2007).

III.

Survivors are not entitled to recover under their own UM/UIMpolicy for the death of a person who is not an insured under that policy. See Farmers Ins. Exch. v. Chacon, 939 P.2d 517, 522 (Colo. App. 1997). Thus, in order to succeed on their claim, the Meza defendants must show that the exclusion in the American Family policies was void, and that Lucia qualified asan insured pursuant to this statute.

We conclude that under the statutory scheme in effect at the time of the accident, Lucia qualified as an insured person. Hence, the limited definition of “relative” in American Family’s insurance policies was in contravention of the intent of the UM/UIM statute at the time those policies were issued.

A.
By enacting the UM/UIM statute, the General Assembly intended to protect the public from “the devastating financial loss that a traffic accident victim can incur.” It provided a mechanism through which an insured could purchase insurance coverage against such a loss. Aetna Casualty & Surety Co. v. McMichael, 906 P.2d 92, 98 (Colo. 1995); see § 10-4-702.

Accordingly, “insurers must offer UM/UIM coverage to a class of insureds coextensive with the class of insureds covered under the liability provision of the policy.” Aetna Casualty, 906 P.2d at 98 (emphasis added). This requirement implements the legislative intent to encourage thewidespread availability of UM/UIM insurance. Id.

B.
Because UM/UIM coverage must be offered to the class covered under the liability provisions, we must begin our discussionwith what coverage is mandated under the liability provisions.

If an insurance policy dilutes, conditions, or limits statutorily mandated liability coverage, it is void and unenforceable. Massingill, 176 P.3d at 820 (citing DeHerrera, 30 P.3d at 173). Insurers may limit coverage only so long as public policy is not violated. Winscom, 843 P.2d at 128. “Thus, if a person seeking coverage is one for whom coverage is required by statute, an insurer cannot limit its statutory obligation by a contractual provision contrary to the requirements of the No-Fault Act.” Finizio v. American Hardware Mut. Ins. Co., 967 P.2d 188, 190 (Colo. App. 1998).

Here, by the policies’ terms, the identical definitions of “relative” and “insured” in the American Family defendants’ policies applied to both liability coverage (required by the No-Fault Act) and UM/UIM coverage. Thus, if the policy definitions of “insured “ and “relative” improperly narrow the class of insureds that is statutorily mandated for liability coverage, the same definitions in the UM/UIMpolicy must necessarily violate public policy.

The issue here is whether the definition of “insured” in the policies, which places limitations on which relatives may be insureds, conflicts with the statutorily mandated liability coverage under the No-Fault Act. Wheeler v. Allstate Ins. Co., 814 P.2d 9, 10 (Colo. App. 1991) (motor vehicle insurance agreements are governed by the No-Fault Act, which is controlling in the event of a conflict between the two).

The statutory classification of persons to whom liability coverage must be extended was codified at section 10-4-703(6). Finizio, 967 P.2d at 190; Winscom, 843 P.2d at 128; see Wiglesworth v. Farmers Ins. Exch., 917 P.2d 288, 290 (Colo. 1996).Under section 10-4-703(6), insureds were defined, as pertinent here, as “relatives of the named insured who reside in the same household as the named insured.” Accordingly, the No-Fault Act required liability coverage for this class of individuals. See Finizio, 967 P.2d at 190 (insurers cannot contractually limit statutorilymandated coverage).
Yet in all three policies of the American Family defendants, the insurers contractually limited the class of persons who would qualify as a ‚”relative.” The pertinent provisions of the American Family defendants’policies all stated as follows: “Relative means a person living in your household, related to you by blood, marriage or adoption. . . . It excludes any person who, or whose spouse, owns a motor vehicle other than an off-road motor vehicle.”

These provisions “improperly narrow the class of insureds” to whom the American Family defendants were required to provide liability coverage under the No-Fault Act. See Finizio, 967 P.2d at 190 (because statute mandated coverage for permissive users, policy improperly limited coverage to those permissive users who did not have liability coverage of their own or who had other liability insurance available less than statutory minimum limits under No-Fault Act). The American Family policies improperly excluded from statutorily mandated liability coverage those otherwise qualified relatives who own, or whose spouses own, vehicles. Because this definition diluted, conditioned, and limited statutorily mandated liability coverage under the No-Fault Act, it is void and unenforceable. Massingill, 176 P.3d at 820; see Finizio, 967 P.2d at 190 (insurer cannot limit statutory obligation by contractual provision contrary to requirements of No-Fault Act).

Because liability coverage is legally required for relatives residing in the named insured’s household, UM/UIM coverage mustextend to these relatives as well. The only permissible limitation is where a policyholder expressly contracts for narrower UM/UIM coverage than that mandated under his liability coverage. See Bernal v. Lumbermens Mut. Casualty Co., 97 P.3d 197, 200 (Colo. App. 2003) (the policyholder may reject or limit UM/UIM coverage). Such is not the case here. By their terms, the American Family policies provided UM/UIM coverage coextensive with liability coverage. But because the liability coverage in the policies improperly limited statutorily mandated coverage, the policies likewise improperly limited UM/UIM coverage of relatives based on the ownership of a vehicle. Because the policies limited statutorily mandated coverage and thus violate public policy, the “relative” exclusion is void. Massingill, 176 P.3d at 820; see Winscom, 843 P.2d at 128 (insurers may limit coverage only if public policy is not violated).
IV.
The American Family defendants contend that the definition of “relative” in the policies is akin to the valid named driver exclusion in Massingill. We disagree. The exclusion there was allowed by statute for named individuals based on their driving records. Massingill, 176 P.3d at 820 (named driver exclusions permitted in motor vehicle insurance policies under former § 10-4-721 and under § 10-4-630, C.R.S. 2007). Here, the limitation placed on the class of people covered by the liability provisions is not provided for by statute.

We also note that the fact that the legislature expressly placed limits on liability coverage in certain circumstances suggests that the General Assembly did not so intend here. See Nat’l Farmers Union Property & Casualty Co. v. Estate of Mosher, 22 P.3d 531, 534 (Colo. App. 2000) (court not at liberty to read additional terms into or modify plain language of statute where General Assembly has elsewhere enacted limitation urged upon the court). Also, the American Family defendants’ reliance on section 42-7-4 13, C.R.S. 2007, as codifying the class of persons to whom liability coverage must extend, is misplaced. That statute by its own terms limits itsapplication to the Motor Vehicle Responsibility Law. See also Wheeler, 814 P.2d at 10 (motor vehicle insurance agreements are governed by No-Fault Act).

In addition, we distinguish the American Family defendants’ supplemental authority, Pacheco v. Shelter Mut. Ins. Co., (D. Colo. No. 06-cv-01 165-JLK-BNB, Jan. 23, 2008) (unpublished order on pending motions). There, the court reasoned that because the
claimant was not an insured under either the UM/UIM or liability provisions of the policy, the exclusion in the UM/UIM policy did not violate the statutory intent that UM/UIM coverage be coextensive with the coverage provided in the liability provision of the policy. The court did not analyze the enforceability of the liability exclusion.

Finally, we conclude the foreign authorities relied on by the American Family defendants are not instructive here. Several of the cases are inapposite because the applicable statutes either did not mandate coverage of relatives, mandated narrower coverage than the Colorado statute, or did not define the class to which coverage must extend. American Family Mut. Ins. Co. v. Cranston, 1989 WL 58963 (D. Kan. No. Civ. A. 88-403 1, May 9, 1989) (unpublished memorandum and order); Middlesex Ins. Co. v. Quinn, 622 A.2d 572(Conn. 1993); Indiana Lumbermans Mut. Ins. Co. v. Vincel, 452 N.E.2d 418 (Ind. Ct. App. 1983); Lewis v. American Family Ins. Group, 555 S.W.2d 579 (Ky. 1977); Washington v. Travelers Ins. Co., 284 N.W.2d 754 (Mich. Ct. App. 1979); Malo v. Aetna Casualty & Surety Co., 459 A.2d 954 (R.I. 1983); Farmers Ins. Co. v. Miller, 549 P.2d 9 (Wash. 1976). In the remaining cases, the issues presented to the court were substantially different from the issue presented here. American Family Mut. Ins. Co. v. Kittinger, 498 N.E.2d 256 (Ill. App. Ct. 1986) (UM coverage does not extend to financially irresponsible relative who cancelled her own car insurance policy); Ellis v. American Family Mut. Ins. Co., 750 N.E.2d 1287 (Ill. App. Ct. 2001) (effect of judicial admission that claimant owned vehicle); Burkett v. American Family Ins. Group, 737 N.E.2d 447 (Ind. Ct. App. 2000) (court’s holding relied on whether definition of ‚relative₤in policy was ambiguous); Smitke v. Travelers Indem. Co., 118 N.W.2d 217 (Minn. 1962), (objective of UM statute was to provide coverage to resident relatives who could not obtain such coverage inany other way); McKee v. American Family Mut. Ins. Co., 932 S.W.2d 801 (Mo. Ct. App. 1996) (issue was whether van owned by resident relative was motor vehicle under insurance policy).

V.
In light of our conclusion, we need not decide whether the trial court erred in characterizing the exclusion as a “vehicle exclusion.”

We affirm the order of the trial court, albeit on different grounds. Steamboat Springs Rental & Leasing, Inc. v. City & County of Denver, 15 P.3d 785, 786 (Colo. App. 2000) (appellate court may affirm a trial court’s correct judgment based on different reasoning).

Order affirmed.
JUDGE VOGT and JUDGE GRAHAM concur.

The question presented in Amschwand was whether an action by a plan beneficiary against a plan fiduciary for monetary relief equal to the insurance benefits that the beneficiary would have received absent the fiduciary’s breach of fiduciary duties seeks “equitable relief” within the meaning of ERISA §502(a)(3). To understand the question presented, a review of the facts is necessary. Mr. Amschwand was employed by Spherion Corp. and was a participant in Spherion’s group life plan, which was insured by Aetna Life Insurance Company. In 1999, Amschwand was diagnosed with cancer and took leave from his job. While on leave, Spherion changed life insurance carriers and purchased a new policy from Aetna. Amschwand elected to be covered under the new policy. His employer, Spherion, confirmed that Amschwand was enrolled under the new policy. Spherion cashed the premium checks. However, Spherion failed to list Amschwand’s name on a list to Aetna of those employees who were on leave on the effective date of the new Aetna group policy. Spherion never informed Amschwand of the requirement to be actively at work, and Aetna’s agreement to waive the Active Work Rule for those individuals who were on leave.

After Amschwand’s death, his widow filed a claim for life insurance benefits with Aetna. Aetna denied the claim on the ground that Amschwand was ineligible for the benefits under the active work rule. Basically, the benefit was clearly denied because of the failures of the employer, Spherion, a plan fiduciary to inform Aetna of Amschwand’s status. Spherion clearly breached its fiduciary duties under ERISA by failing to provide the appropriate paperwork to Aetna. Amschwand’s widow sought to recover from Spherion “all monetary losses caused by its breach of fiduciary duty,” specifically the value of the life insurance benefits she would have received but for the breach.

What is probably quite surprising to non-practitioners in the ERISA arena, Amschwand’s widow lost her case. The courts of appeals have generally followed the rule that monetary damages equal to the benefits a beneficiary would have received but for the fiduciary’s breach do not constitute “equitable relief” and are therefore not an available remedy under ERISA. The 10th Circuit decision in Callery v. United States Life Ins. Co., 392 F.3d 401 (2004) reached the same conclusion as the 5th Circuit in this Amschwand case.

However, a close review of the history of equitable claims for relief against fiduciaries under trust law clearly shows that the relief sought by the Amschwand’s would have been considered equitable in the days of the divided bench (when we had both courts of law and courts of equity). Despite this, the United States Supreme Court has refused to review the 5th Circuit decision in Amschwand.

The narrow view of § 502(a)(3) adopted by most courts of appeals leaves plan participants and beneficiaries who have been harmed by fiduciary breaches without any meaningful remedy. ERISA’s express statutory goal is to “protect…the interests of participants in employee benefit plans and their beneficiaries” by imposing stringent duties on plan fiduciaries and providing ready access to the federal courts to remedy breaches of those duties. The courts of appeals, and now the United States Supreme Court, have lost sight of the purpose of ERISA and, essentially, what is fair.

Our office handles breach of fiduciary duty claims as well as direct benefit claims. Feel free to visit our ERISA Claims section of the website.