Relief for Fiduciary Breach?

A Seventh Circuit panel that included Judge Easterbrook recently invited an ERISA plaintiff to seek "make-whole" relief against a fiduciary in McDonald v. Household International, Inc. This has been a vexing issue for plan participants since the Supreme Court's decision in Great-West, which many courts have interpreted to limit severely the kind of relief a participant may obtain from fiduciaries and others.

Mr. McDonald started working for his employer on November 19, 2001. His health insurance coverage was supposed to be effective as of December 19. For some reason, this did not occur. After December 19, he repeatedly tried to get a prescription filled for blood pressure medicine. Each time he was told that he did not have insurance coverage. Because he could not afford to pay for the drugs himself, he went without them from December 19 to January 15, 2002. He pleaded with his employer and the HMO to fix the problem but nothing happened. On January 15, he suffered a "catastrophic stroke." Subsequently, he and his wife filed the lawsuit, which raised a variety of state negligence and contract claims, but no ERISA claims. The McDonalds obviously hoped to avoid ERISA's limitations on available relief.

Naturally, all of their claims were preempted by ERISA. Judge Wood, however, writing for the court, suggested that the McDonalds take a look at Justice Ginsburg's concurring opinion in Davila:

where she drew attention to the Government's suggestion that ERISA "as currently written and interpreted, may allo[w] at least some form of 'make-whole' relief against a breaching fiduciary in light of the general availability of such relief in equity at the time of the divided bench."

Mr. McDonald should have been covered by a health plan and should have been able to obtain his medicine, which likely would have prevented his stroke. Either the employer or the HMO dropped the ball. The McDonalds are now burdened with presumably massive medical expenses. Yet, since the Supreme Court issued its decision in Great-West, many courts would rule that the McDonalds have no right under ERISA to monetary relief from any party, fiduciary or not.

It is settled law that ERISA prevents participants from receiving tort-type compensation for pain and suffering. However, the McDonalds should be able to recover from a breaching fiduciary monetary compensation at least equal to their medical bills. Three judges from the Seventh Circuit seem to believe that the issue is worth exploring further, at a minimum.

The Department of Labor is pressing courts to rethink the assumption that monetary payments from a fiduciary to a participant can never qualify as equitable relief. A recent brief on that point is here.