:: When Employer Lapses Cost Participants Their Coverage – Wrong Without Remedy?

We share appellant’s concern that her claim exists in a remedy-less “regulatory vacuum” created by ERISA’s broad preemption of state law claims and the Supreme Court’s narrow interpretation of “other appropriate equitable relief.” Aetna Health Inc. v. Davila, 542 U.S. 200, 222, 124 S. Ct. 2488, 159 L. Ed. 2d 312 (2004) (Ginsburg, J., concurring); see also Eichorn v. AT&T Corp., 489 F.3d 590, 591-94 (3d Cir. 2007) (Ambro, J., concurring in denial of petition for rehearing en banc); E. Daniel Robinson, Note, Embracing Equity: A New Remedy for Wrongful Health Insurance Denials, 90 Minn. L. Rev. 1447, 1449-55 (2006). Nevertheless, we are bound by the precedent of this circuit and the Supreme Court. Accordingly, the district court’s order of dismissal is affirmed.

Pichoff v. QHG of Springdale, Inc., 2009 U.S. App. LEXIS 3756 (8th Cir. Ark. Feb. 26, 2009)

This case is reminiscent of the disturbing cases which the Eighth Circuit cites as in accord with its opinion.  (See, Amschwand v. Spherion Corp., 505 F.3d 342, 343, 348 (5th Cir. 2007) (section 1132(a)(3)(B) does not permit “damages in the form of payment of life insurance benefits that would have accrued to a plan beneficiary but for a plan fiduciary’s breach of fiduciary duty”); Callery v. U.S. Life Ins. Co., 392 F.3d 401, 406 (10th Cir. 2004))

Here the plan participant, Dr. Pichoff, had $1 million plus in life insurance benefits.  A year after acquiring this coverage through his employment, Dr. Pishoff is diagnosed with cancer.   You can imagine the consolation he must have taken in the insurance benefits he had obtained