Opinion
No. C99-2073 MJM.
March 6, 2001.
ORDER and OPINION I. INTRODUCTION
Plaintiff, Brian A. Glick, brought the above-entitled action pursuant to 29 U.S.C. § 1132, seeking to recover benefits under the long-term disability benefits plan administered by Defendant, Cooperative Benefit Administrators, Inc. ("CBA"). Mr. Glick alleges that CBA breached an agreement to provide him long-term disability benefits by denying continuation of those benefits after two years. (Doc. no. 1). CBA denies any breach asserting that Mr. Glick was ineligible for continued coverage under the long-term disability benefits plan. (Doc. no. 6).
Section 1132(a) permits a participant or beneficiary of any plan subject to the Employee Retirement Income Security Program ( 29 U.S.C. § 1054 to 1144) ("ERISA") to bring a civil action "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." This Court has jurisdiction to provide such relief where appropriate pursuant to 29 U.S.C. § 1132(f).
Currently before this Court is CBA's motion for summary judgment. (Doc. nos. 16-18). For the reasons set forth below, the Court finds Mr. Glick has failed to raise any genuine issues of material fact and that CBA is entitled to judgment as a matter of law.
II. SUMMARY JUDGMENT STANDARD
The standard for granting summary judgment is well-established. A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Montgomery v. John Deere Co., 169 F.3d 556, 559 (1999); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation omitted); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
A court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party, and give the nonmoving party the benefit of all reasonable inferences that can be drawn from those facts. See Matshusita, 475 U.S. at 587; see also Rabushka, ex rel. U.S. v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997), cert denied, 523 U.S. 1040 (1998). A court must not, however, "weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter" when evaluating a motion for summary judgment. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir. 1996) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256 (1986)). Instead, a court should simply determine whether there are genuine issues of material tact for trial. See id.; see also Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir. 1990). "An issue of material fact is genuine if it has a real basis in the record." Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita, 475 U.S. at 586-87). As to whether a factual dispute is "material," the Supreme Court has explained, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; see also Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995); Hartnagel, 953 F.2d at 394.
The party moving for summary judgment bears the "initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show lack of genuine issue." Celotex, 477 U.S. at 323. Once the moving party has carried its burden, the opponent must go beyond the pleadings and designate specific facts-by such methods as affidavits, depositions, answers to interrogatories, and admissions on file-that show that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. The evidence of the nonmoving party is to be considered as true, and justifiable inferences arising from the evidence are to be drawn in his or her favor. See Anderson, 477 U.S. at 255. If the evidence of the nonmoving party is "merely colorable," or is "not significantly probative," summary judgment may be granted. Id. at 249-50. Thus, the nonmoving party does not have to provide direct proof that genuine issues of fact exist for trial, but the facts and circumstances that the nonmoving party relies upon must "attain the dignity of substantial evidence and must not be such as merely to create a suspicion." Metge v. Baehler, 762 F.2d 621, 625 (8th Cir.), cert. denied, 474 U.S. 1057 (1985). In essence, the evidence must be such that a verdict could be rendered in favor of the nonmoving party. See Anderson, 477 U.S. at 248.
III. FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to Local Rule 56.1(a), CBA provided a detailed statement of facts with citations to the record in support of its motion for summary judgment. As CBA's recitation of the facts has gone largely undisputed by Mr. Glick, the Court will restate the facts as they are laid out by CBA, highlighting where necessary, the few factual disputes outlined by Mr. Glick. The Court's reliance on CBA's factual statement notwithstanding, the Court will view all the facts in the light most favorable Mr. Glick.
Defendant CBA, a Nebraska corporation, is a wholly-owned subsidiary of the National Rural Electric Cooperative Association ("NRECA"). NRECA is the national trade association for over 1,000 rural electric cooperatives throughout the United States. NRECA offers a number of services to its member systems and certain companies affiliated with NRECA, including sponsoring retirement plans and disability, life, accident, medical and other welfare benefit plans that are created pursuant to and governed by ERISA. These welfare benefit plans are made available to member systems of NRECA through the NRECA Group Benefits Program, which is a single plan of welfare benefits as defined in section 3(1) of ERISA, 29 U.S.C. § 1002(1).
At issue in this action is NRECA's self-insured long-term disability plan (the "NRECA LTD Plan" or "Plan"). As the NRECA LTD Plan is an "employee welfare benefit plan" as defined by section 3(1) of ERISA the payment of those benefits is regulated by the requirements of ERISA.
Mr. Glick is a participant in the NRECA LTD Plan by virtue of his employment with Dairyland Power Cooperative ("Dairyland") in Lacrosse, Wisconsin. Dairyland is a member of NRECA and is enrolled as a participating system in the NRECA LTD Plan. As such, employees of Dairyland can qualify to receive disability benefits according to the terms of the NRECA LTD Plan.
The NRECA LTD Plan provides benefits to eligible participants who are totally disabled from performing any and every duty of their occupation during the first two years of disability. After two years, the definition of "total disability" changes so that benefits under the NRECA LTD Plan terminate unless the participant establishes that he is totally disabled from performing any and every gainful occupation for which he is reasonably fitted by education, training or experience.
CBA is the claims adjudicator for the NRECA LTD Plan and as such, is a fiduciary as defined in section 402(a) of ERISA, 29 U.S.C. § 1102(a), with respect to claims for benefits under that Plan. NRECA has at all times delegated full and final authority to CBA to interpret the provisions of the NRECA LTD Plan and to determine eligibility for benefits under the Plan. Specifically, section 9.07 of the NRECA Group Benefits Program provides:
9.07 Grant of Discretion. In discharging the duties assigned to them under the Program, the Committee, the Plan Administrator and CBA and their delegates have the discretion and final authority to interpret and construe the terms of the Plans; to determine coverage and eligibility for benefits under the Plans to adopt, amend, and rescind rules, regulations and procedures pertaining to their duties under the Plans, and the administration of the Plans; and to make all other determinations deemed necessary or advisable for the discharge of their duties or the administration of the Program. The discretionary authority of the Committee, the Plan Administrator and CBA and their delegates is final, absolute, conclusive and exclusive, and binds all parties so long as exercised in good faith. NRECA, as sponsor of the Program, specifically intends that judicial review of any decision of the Committee, the Plan Administrator or CBA, or an insurance company that is a claims adjudicator under section 8.02 and their delegates be limited to the arbitrary and capricious standard of review.
In the event of a dispute regarding a participant's eligibility, the NRECA LTD Plan provides to claimants review of adverse claims decisions pursuant to the requirements of section 9 of the NRECA Group Benefits Program and section 503 of ERISA, 29 U.S.C. § 1133.
On or about February 15, 1996, Mr. Glick submitted to CBA a claim for benefits under the NRECA LTD Plan as result of an injury he suffered on October 15, 1995. CBA determined that Mr. Glick was eligible for benefits under the NRECA LTD Plan because, as a result of his injury, he could not perform any and every duty of his occupation as a Line Worker for Dairyland. He was therefore "totally disabled" for purposes of the initial twenty-four month "own occupation" period, as defined in section 2.01(i)(A) of the NRECA LTD Plan.
At the end of 1996, CBA also made the determination, based on information supplied by Mr. Glick, that he was not "totally disabled" from all occupations for which he was reasonably fitted by education, training or experience, as opposed to his own occupation. Accordingly, in a letter dated December 10, 1996, CBA notified Mr. Glick that after the twenty-four month "own occupation" period which ends on January 12, 1998, his benefits would be terminated. Specifically, CBA advised Mr. Glick that the definition of "totally disabled" under the NRECA LTD Plan changes after the first twenty-four months. After that period a claimant must be "totally disabled" from all occupations for which he is reasonably fitted by "education, training and experience" to be eligible for benefits. CBA further explained that this decision was based in part on the report submitted by Mr. Glick's physician, Dr. Dierschke, which indicated that she did not feel that Mr. Glick was disabled from working under that definition.
When the twenty-four month "own occupation" period ended, CBA again notified Mr. Glick, in a January 13, 1998 letter, that his benefits under the NRECA LTD Plan would not be extended beyond the end of the occupational period (January 12, 1998). In this letter, CBA explained to Mr. Glick that while he could not return to his previous occupation as a Line Worker, the information received in support of his claim indicated that he "would not be prevented form performing the duties of a more sedentary occupation." CBA also informed Mr. Glick of his right to submit additional information to support his claim and of his right to appeal the decision to the assistant manager of CBA.
By letter dated February 4, 1998, Mr. Glick appealed the denial of his claim to CBA's assistant manager. In a letter dated February 17, 1998, the assistant manager affirmed the denial, explaining that the medical and vocational evidence indicated that Mr. Glick was capable of light to medium duty work, and was therefore capable of gainful employment. CBA also notified Mr. Glick that he had the right to appeal to the Appeal Committee, and that he had the right to request copies of the documents that were the basis of CBA's decision and that would be considered by the Appeal Committee. CBA further advised Mr. Glick that he had the right to submit additional materials to support his claim for continued benefits.
Mr. Glick's counsel informed CBA of his decision to appeal to the Appeal Committee by letter dated May 18, 1998. In that letter, Mr. Glick's counsel stated that he was "of a belief that the relevant documents concerning Mr. Glick's appeal are already present before the board and were filed with his initial appeal from the determination to discontinue his benefits."
By letter to Mr. Glick's counsel dated July 31, 1998, the Appeal Committee affirmed the Assistant Manager's finding that Mr. Glick was not totally disabled. The Appeal Committee explained that Mr. Glick's physician, Dr. Dierschke, stated that she did "not feel that he is disabled from working," and advised that he could tolerate working in the light/heavy category of physical demands, including lifting 75 pounds maximum with frequent lifting and/or carrying of light objects up to 40 pounds. The Appeal Committee also explained that a functional capacity evaluation of Mr. Glick demonstrated that he was capable of light to medium level work. Further, a vocational assessment matched his education, training and experience to a number of light to medium duty jobs. Additionally, the Appeal Committee noted that Mr. Glick advised Intracorp (the third party which evaluated Mr. Glick at CBA's request) that he felt he was capable of performing work within the restrictions set out by Dr. Dierschke.
Mr. Glick then filed the present action seeking to recover benefits he believed were due to him under the terms of the plan. CBA filed for summary judgment based on the above stated facts. In his resistance to that motion, Mr. Glick moved for and was granted leave to file an Amended Complaint. In his Amended Complaint, Mr. Glick maintains that CBA did not provide him a copy of the Summary Plan Description ("SPD") as required by 29 U.S.C. § 1102. In an affidavit filed in support of his resistance to summary judgment, Mr. Glick states: "I have no recollection of ever having received anything identified as a Summary Plan Description relating to disability benefits during my employment with Dairyland Power Cooperative." Also in his affidavit Mr. Glick states that after his original disability application was approved, he received correspondence from CBA outlining the conditions under which he was to receive benefits. The first of these letters from CBA, dated February 29, 1996, stated:
"During the first 24 months, you are eligible to receive LTD [long-term disability] benefits as long as you remain totally disabled from performing any and every duty of your occupation with your employer. After 24 months, the definition changes and you must then be totally disabled from performing any and every occupation for which you are reasonably fitted for by education, training and experience."
Mr. Glick received several letters subsequent to this one, dated March 14, 1996, December 10, 1996, January 13, 1998, and July 31, 1998 respectively, utilizing the same phraseology.
CBA filed a reply to Mr. Glick's resistance as well as a supplemental brief pursuant to Fed.R.Civ.P. 15 to address the new allegations in his Amended Complaint. Additionally CBA supplied the affidavit and accompanying memorandum of A.J. Leisso, Dairyland's Manager of Employee Benefits, in which she states that she distributed to all Cost Center Managers copies of the NRECA Employee Benefit Plan Handbook ("Handbook"). She requested that all managers distribute the Handbooks to the employees and she instructed the managers to have all employees sign receipts acknowledging that they had received a copy of the Handbook and return those receipts to her. These Handbooks contain the SPD for the NRECA LTD Plan. The SPD, consistent with the actual NRECA LTD Plan, contains the following language with regard to eligibility for LTD benefits after expiration of the twenty-four month own occupancy period: "you must be completely unable to engage in any and every gainful occupation you are reasonably fitted for by education, training or experience." CBA also entered into the record the form signed by Mr. Glick where he acknowledged receipt of the Handbook which contains the SPD.
IV. DISCUSSION
When, as in this case, the benefit plan gives the administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan, a court reviews a plan administrator's determination under an abuse of discretion standard. See Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); see also Marolt v. Alliant Techsystems, Inc., 146 F.3d 617, 619-20 (8th Cir. 1998); Donaho v. FMC Corp., 74 F.3d 894, 898-99 (8th Cir. 1996); Oldenburger v. Central States Southeast Southwest Area Teamster Pension Fund, 934 F.2d 171, 173 (8th Cir. 1991) (applying arbitrary and capricious standard of review to pension fund's denial of benefits).
In its original motion for summary judgment CBA argued the undisputed factual record demonstrates it made a reasoned and impartial judgment in determining Mr. Glick is not "totally disabled," defined by its formal benefit plan as "unable to engage in any and every gainful occupation you are reasonable fitted for by education, training or experience." In his response, Mr. Glick does not dispute that CBA reviewed all the medical evidence submitted by him in making its decision, nor does he contend that CBA failed to follow the applicable appeal procedures set forth in the NRECA Group Benefits Program. Neither does Mr. Glick highlight disputed facts in the record to call into question CBA's finding that he is not "totally disabled" under the formal NRECA LTD Plan's definition — unable to engage in any and every gainful occupation you are reasonable fitted for by education, training or experience." Instead, by way of an Amended Complaint, Mr. Glick raises two new issues which he avers create a genuine disputed fact for trial. Mr. Glick contends that he did not receive the SPD from CBA as required by 29 U.S.C. § 1102 of ERISA. He further alleges that a discrepancy exists between the articulation of the standard for determining "totally disabled" in the SPD and the articulation of the standard in the correspondence from CBA to Mr. Glick. Mr. Glick contends he relied on the less stringent standard articulated in the correspondence from CBA because he did not receive an SPD, and CBA is now estopped from asserting the SPD's allegedly stricter standard.
In fact, the undisputed factual record indicates that the CBA Appeal Committee found that Mr. Glick did not meet the definition of "totally disabled" as defined by the formal NRECA LTD Plan because his own physician estimated that he was able to work, and Mr. Glick himself estimated that he could work within the limitations laid out by his physician. Moreover, CBA retained Intracorp to perform a Transferable Skills Analysis which evaluated the available jobs in Mr. Glick's geographic area for which he was reasonably fitted by education, training or experience. Taking these factors into consideration, as well as Mr. Glick's physical limitations, Intracorp identified several positions that could be performed by someone with Mr. Glick's education, training or experience.
A claims administrator's decision is not considered an abuse of discretion provided it is supported by substantial evidence. See Donaho, 74 F.3d at 900; Cox v. Mid-America Dairymen, Inc., 13 F.3d 272, 275 (8th Cir. 1993). If the claims administrator's decision is based on substantial evidence, the decision "may not be displaced on review even if the court might have reached a different result had the matter been before it de novo." Donaho, 74 F.3d at 900 (internal quotations omitted). Having thoroughly reviewed the record, this Court finds there is substantial undisputed evidence in the record to support CBA's finding that Mr. Glick is not "totally disabled," defined by the formal NRECA LTD Plan as "unable to engage in any and every gainful occupation you are reasonably fitted for by education, training or experience."
A. Mr. Glick's Receipt of a Copy of the Summary Plan Description
ERISA requires that benefit plans be governed by written plan documents which are to be prepared and filed in compliance with ERISA's reporting and disclosure requirements. See Alday v. Container Corp. of America, 906 F.2d 660, 665 (11th Cir. 1990) (citations omitted), cert. denied, 498 U.S. 1026 (1991). One statutory requirement is the creation of a SPD, which is the statute's established means of informing participants of the terms of the formal plan and its benefits. See id. (citing 29 U.S.C. § 1022(a) 1102; 29 C.F.R.). § 2520.102-2); see also Palmisano v. Allina Health Systems, Inc., 190 F.3d 881, 888 (8th Cir. 1999). The SPD functions as "a plain language summary of the plan's terms and benefits that must be distributed to participants." Palmisano, 190 F.3d at 888 (citing, 29 U.S.C. § 1022(a)); 29 C.F.R. § 2520.102-2); see also Jensen v. SIPCO, Inc., 38 F.3d 945, 952 (8th Cir. 1991), cert denied, 514 U.S. 1050 (1995) (stating "Congress required plan administrators to furnish SPDs to each plan participant and beneficiary")).
Mr. Glick maintains that he did not receive the SPD as required by the statute. The whole of Mr. Glick's evidence to support this contention is his affidavit in which he states: "I have no recollection of ever having received anything identified as a Summary Plan Description relating to disability benefits during my employment with Dairyland Power Cooperative." Mr. Glick's inability to recollect receiving the SPD fails to generate a genuine issue of material fact where Dairyland's Manager of Employee Benefits, A.J. Leisso, states in her affidavit that she distributed to all Cost Center Managers copies of the NRECA Handbooks which contained in them the SPD, she instructed the managers to obtain signed forms from the employees acknowledging that they received these Handbooks, and CBA in fact produced the form signed by Mr. Glick acknowledging he did indeed receive a copy of the Handbook. Mr. Glick does not dispute this evidence nor does he contend the acknowledgment form does not contain his signature or that he was coerced, or otherwise persuaded against his will to sign it. In view of CBA's uncontroverted evidence, even viewing the record in the light most favorable to Mr. Glick, his affidavit is at best "merely colorable" and is "not significantly probative" to generate a triable issue of fact on whether he received a copy of the SPD. Anderson, 477 U.S. at 249-50.
B. Mr. Glick's Reliance on the Correspondence from CBA
Even assuming Mr. Glick did not receive an SPD of CBA's formal benefit plan, his claim that he relied to his detriment on the articulation of the plan in correspondence from CBA meets a similar fate. As stated earlier, Mr. Glick maintains that he relied on the standard of "totally disabled" as it was defined in correspondence from CBA and because he allegedly did not receive an SPD, CBA is now estopped from relying on the purportedly more stringent standard outlined in the SPD. The different standards are "education, training or experience" as set forth in the SPD and "education, training and experience," which was set forth in CBA's correspondence. Mr. Glick avers that the contract standard treats each component separately so that any one of the three could be used to deny disability benefits to Mr. Glick, whereas the standard represented in CBA's correspondence treats the components as part of a whole, so that only the sum of Mr. Glick's education, training and experience can be used to determine disability. Mr. Glick asserts that the latter construction results in a standard virtually indistinguishable from that used during the first twenty-four month period of receiving benefits, that it is that standard that Mr. Glick thought applied throughout the appeals process, and that under that standard, the Appeal Committee's decision was arbitrary and capricious.
The Court notes as an initial matter that even assuming CBA violated ERISA by failing to provide an SPD describing its severance benefit plans, see § 29 U.S.C. § 1024(b), "an ERISA disclosure violation does not entitle a participant or beneficiary to benefits to which he is not entitled under the plan." Palmisano, 190 F.3d at 888-889 (citing Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1170 (3d Cir. 1990)).
As noted above, the SPD is an important part of ERISA's reporting and disclosure requirements. "ERISA and the accompanying Department of Labor regulations set forth in great detail the information an SPD must contain and how it must be written." Palmisano, 190 F.3d at 888; see also Jensen, 38 F.3d at 952. "SPDs must be `sufficiently accurate and comprehensive to reasonably appraise participants and beneficiaries of their rights and obligations under the plan.'" Palmisano, 190 F.3d at 888 (citing 29 U.S.C. § 1022(a), (b)).
When SPD provisions conflict with formal plan provisions, the SPD provisions prevail as a matter of law. See Barker v. Ceridian Corp., 122 F.3d 628, 632 (8th Cir. 1997), cert. denied, 120 S.Ct. 963 (2000); see also Jensen, 38 F.3d at 952; Marolt, 146 F.3d at 621 (quoting Barker, 122 F.3d at 633) (stating if "[a] plan document required by law to be plainspoken for the benefit of `average plan participant[s], 29 U.S.C. § 1022(a)(1) (1994), and furnished to participants, see id. § 1024(b)(1), says one thing, and an obscure passage in a transactional document only lawyers will read and understand says something else . . . [t]he accessible provisions govern because "[a]dequate disclosure to employees is one of ERISA's major purposes"). "If a document is to be afforded the legal effects of an SPD, such as conferring benefits when it is at variance with the plan itself, that document should be sufficient to constitute an SPD for filing and qualification purposes." Hicks v. Fleming Cos., Inc., 961 F.2d 537, 542 (5th Cir. 1992) (cited with approval by Palmisano, 190 F.3d at 888).
In the present case, the record does not support a finding that the CBA correspondence is such that it warrants the legal effect of an SPD, conferring benefits when it is at variance with the plan itself. Nevertheless, relying on the theory of estoppel, Mr. Glick argues because he did not receive an SPD, the language of the CBA correspondence is binding and precludes CBA's application of the SPD stricter standard unknown to him.
In making this argument, Mr. Glick ignores ERISA's requirement that employee benefit plans "be established and maintained pursuant to a written instrument" Palmisano, 190 F.3d at 888 (quoting 29 U.S.C. § 1102(a)(1)), and that each plan shall "provide a procedure for amending such a plan, and for identifying the persons who have the authority to amend the plan." Alday, 906 F.2d at 665 (citing 29 U.S.C. § 1102 (b)(3)). "By explicitly requiring that each plan specify the amendment procedures, Congress rejected the use of informal written agreements to modify an ERISA plan," such as the correspondence at issue in this case. Alday, 906 F.2d at 665. Accordingly, rudimentary correspondence between CBA and Mr. Glick, updating Mr. Glick about the status of his disability benefits may not be construed as controlling or modifying the eligibility requirements in the formal plans because "ERISA precludes oral or informal amendments to a plan, by estoppel or otherwise." Houghton v. SIPCO, Inc., 38 F.3d 953, 958 (8th Cir. 1994) (citing National Cos. Health Benefit Plan v. St. Joseph's Hosp., 929 F.2d 1558, 1572 n. 13 (11th Cir. 1991); Hozier, 908 F.2d at 1163-64; Moore v. Metropolitan Life Ins. Co., 856 F.2d 488, 492 (2d Cir. 1988)); see also Palmisano, 190 F.3d at 888 (finding if loose leaf summaries of the Plan are not considered an SPD, faulty or otherwise, it may not be construed as controlling or modifying the eligibility requirements in the formal plans because ERISA precludes oral or informal amendments to a plan, by estoppel or otherwise); Jensen, 38 F.3d at 953 (stating "[m]ost courts have held that ERISA precludes oral or informal amendments to a plan, estoppel or otherwise"). Irrespective of Mr. Glick's reliance on the CBA correspondence's definition of "totally disabled," the terms of the NRECA LTD Plan are controlling; and consequentially, CBA's determination of Mr. Glick's eligibility pursuant to the NRECA LTD Plan.
The Court notes that Mr. Glick was put on notice by CBA as early as December 10, 1996 that he was not eligible for long-term benefits under the NRECA LTD Plan. According to CBA, at that time, and throughout the benefit application process Mr. Glick was represented by counsel. Nevertheless, neither Mr. Glick nor his counsel requested an SPD or a copy of the NRECA LTD Plan. Under these circumstances, Mr. Glick's reliance on cursory correspondence from CBA about his eligibility to benefits under the plan is suspect.
V. CONCLUSION
Because Mr. Glick has failed to generate an issue of disputed fact, and CBA is entitled to judgment as a matter of law, CBA's motion for summary judgment is granted.
ORDER
Accordingly, IT IS ORDERED:
Defendant's motion for summary judgment is granted.
Done and so ordered this 6th day of March, 2001.