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McCutchen Round 2 – Why 29 U.S.C. 1024(b)(4) Matters

On March 17, 2014 the trial court in the infamous U.S. Airways v McCutchen entered an order allowing Mr. McCutchen to amend his answer to include affirmative defenses and a counter-claim.  The court allowed this unusually late amendment to pleadings as result of U.S. Airways’s failure to produce the Master Plan Document (MPD) until just before oral arguments at the U.S. Supreme Court. 

“[T]he Court [was] troubled by US Airways’ untimely production of the Plan documents and its disingenuous contention that Defendants failed to request the Plan document”

This is an example of how making a proper 29 U.S.C 1024(b)(4) request could have made a monumental difference. In this  seminal case, the plaintiff’s failed to properly and timely make their document request under 29 U.S.C. 1024(b)(4).  This failure allowed the ERISA plan to, at least temporarily, avoid producing the unfavorable Master Plan Document (MPD).  Just as in Cigna v. Amara, 131 S. Ct. 1866 (U.S. 2011), the benefits enumerated in the Summary Plan Description (SPD) were strikingly different from the plan participants benefits as defined in the MPD. 

In the McCutchen case the only recovery for the injured plaintiff was $10,000 from the tortfeasors Bodily Injury (BI) coverage and $100,000 from Mr. McCutchen’s own Under Insured Motorist (UIM) coverage.  After appeals to the 3rd Circuit and the U.S. Supreme Court, Mr. McCutchen was required to repay the U.S. Airways ERISA plan over $66,866. This resulted in (after attorney fees and costs) Mr. McCutchen being $867.00 out of pocket.  What is significant is that the MPD in this instance does not allow for U.S. Airways to make a recovery from the UIM coverage, meaning that they should have only been able to look to the $10,000 in BI as a repayment source. 

Had Mr. McCutchen’s attorneys made a proper 29 U.S.C. 1024(b)(4) request this would have been discovered immediately and it is likely that U.S. Airways would have agreed with their own plan language avoiding the Supreme Court’s unfavorable decision.  ERISA plans are only able to enforce “the terms of the plan” (29 U.S. Code § 1132) and thus it is incumbent upon the plaintiff’s attorney to obtain the “terms of the plan.” 

This action by the trial court hopefully will result in Mr. McCutchen being able to retain at least some portion of the settlement proceeds.  However, the bad law of U.S. Airways v. McCutchen, 569 U.S. (2013) remains as a result of the failure to demand what every ERISA plan participant is allowed to review and every ERISA plan is required to produce. 

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