The second issue presented is whether Gulf is the 'administrator' of the program, as that term is defined in § 5 of the Act, 29 U.S.C. 304:
'(1) the person or persons designated by the terms of the plan or the collective bargaining agreement with responsibility for the ultimate control, disposition, or management of the money received or contributed; or
'(2) in the absence of such designation, the person or persons actually responsible for the control, disposition, or management of the money received or contributed, irrespective of whether such control, disposition, or management is exercised directly or through an agent or trustee designated by such person or persons.'
In the 'description' of the program which Gulf filed with the Secretary in 1959, pursuant to § 8(b) of the Act, 29 U.S.C. § 307(b), the party shown as the plan administrator was Associated Hospital Service of Philadelphia and Medical Service Association of Pennsylvania (Blue Cross-Blue Shield). Gulf presently contends that it acts merely as a 'remitting agent,' as a 'conduit to facilitate the payment by the employees of their monthly premiums.'
We think Gulf misconceives its function under the plan. It is, true enough, a remitting agent or a conduit, but it is much more. The reference to 'money' in the definition of administrator is to money received by, or contributed to, the plan, and not money received by an insurer or service organization like Blue Cross-Blue Shield for the performance of plan functions. There is a clear distinction in the definition of 'employee welfare benefit plan' between the 'plan' and the method used to provide benefits under the plan, i.e., 'through the purchase of insurance or otherwise.' The definition of 'administrator', supra, imports a trust relationship to the money received by, or contributed to, the plan. Gulf stands in such a relationship. Associated Hospital does not. The latter receives money as its own, -- as consideration for its contract of insurance. It is in no wise responsible for the control, disposition, or management of money belonging to the plan.
The conclusion that Gulf is the administrator of the plan is fortified by various other provisions of the Act. Section 7(b), 29 U.S.C. § 306(b), requires that information required to be reported in the annual report 'shall be sworn to by the administrator, or certified to by an independent certified or licensed public accountant, based upon a comprehensive audit * * * but nothing herein shall be construed to require such an audit of the books or records of any * * * insurance company, or other institution providing an insurance * * * function for the plan * * *.'
Section 7(g) of the Act, 29 U.S.C. § 306(g), provides:
'If some or all of the benefits under the plan are provided by an insurance carrier or service or other organization, such carrier or organization shall certify to the administrator of such plan * * * such reasonable information determined by the Secretary to be necessary to enable such administrator to comply with the requirements of this chapter.' (Emphasis suppled)
Other provisions, as well as the legislative history of the Act, might be cited to indicate that an insurance carrier or service organization providing insurance functions for a plan is not the person or persons constituting the plan administrator, but we need not labor the point.
After due consideration of the able and comprehensive arguments of counsel, oral and written, and our independent investigation of the issues, we are impelled to the conclusion that (1) the Gulf program is an 'employee welfare benefit plan,' within the meaning of the Act; (2) that Gulf is the 'administrator' of the plan, as that term is defined in the Act; and (3) that the plaintiff is, in consequence, entitled to the injunctive relief sought.
Now, March 22nd, 1965, it is ordered that:
1. Plaintiff's motion, to which defendant assented, to strike the 2nd, 3rd and parts of the 4th and 5th paragraphs of the affidavit of Mr. Warne of defendant, Gulf Oil Corporation, is granted.
2. Defendant's motion for summary judgment be, and it is, denied.
3. Plaintiff's cross-motion for summary judgment be, and it is, granted.
4. Counsel shall submit an appropriate order for injunctive relief within 30 days.
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