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September 4, 1979


The opinion of the court was delivered by: BECHTLE


Presently before the Court is the motion of defendant Warner & Swasey Company ("Warner") to dismiss for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6), on the ground that plaintiff John Lucas ("Lucas") has failed to exhaust internal remedies in respect to his claim arising under an employee benefit plan. *fn1" Lucas, a former employee of Warner, alleges that he was illegally denied disability retirement pension benefits under the Wiedemann Hourly Paid Union Employees Retirement Plan" (as amended and restated as of January 1, 1976), established pursuant to a collective bargaining agreement between Local 155 of the United Electrical, Radio and Machine Workers of America ("Local 155") and Warner. Jurisdiction is based upon Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, and Section 502 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132.

 As defined in the collective bargaining agreement, established internal remedies mandate an initial determination of employee disability by the Pension Committee, based on medical evidence which is subject to review, if a written appeal is filed within six months with the Administrative Committee. The plaintiff did present an initial application for total disability to the Pension Committee on May 23, 1977; and on June 22, 1977, he was denied relief by the Pension Committee without delineating that the reason for the denial was due to any lack of medical disability. As a result, the plaintiff on September 27, 1977, again applied to the Pension Committee for disability benefits. On November 2, 1977, the Pension Committee responded that a decision would be made upon the taking of a physical examination of the plaintiff by a physician paid for by Warner. Finally, on March 6, 1978, plaintiff's counsel responded in a letter to the Manager of Industrial Relations of Warner indicating that, because he had not received a response to his requests for a list of "independent physicians" to conduct the examination of Lucas, he assumed that an examination was no longer required and stated, ". . . consider this letter as a request for an appeal to that body specified in the Collective Bargaining Agreement and notify me of the date of the hearing." See Exhibit C, Plaintiff's Memorandum of Law Contra Defendant's Consolidated Motion Under Fed.R.Civ.Pro. 12(g). Lucas claims that the Pension Committee's denial of his disability claims was arbitrary, capricious and wanton.

 In the case at bar, the independent power of review by a fiduciary, as required by ERISA, 29 U.S.C. § 1133, *fn2" has been delegated to the Administrative Committee. Exacting procedures have been established by the parties to the agreement in order to assure an opportunity for review of the Pension Committee's denial of claims. Article VI, section 6.3 of the collective bargaining agreement provides as follows:

6.3 Review Procedure. Within six months after the mailing of such a notice of denial, the claimant can appeal such denial by filing with the Company his written request for a review of his said claim. If such an appeal is so filed within such six-month period a Person appointed by the Company, which Person shall be designated a Named Fiduciary, shall promptly conduct a full and fair review of such claim and mail to the claimant a written decision on the matter based on the facts and the pertinent provisions of the Plan. Such decision shall be written in a manner calculated to be understood by the claimant and shall state the specific reasons for the decision. During such full review the claimant shall be given the opportunity to review documents that are pertinent to his claim and to submit issues and comments in writing and, if he requests a hearing, to present his case in person or by an authorized representative at a hearing scheduled by the Company.

 Furthermore, greater detail of exactly what procedures are required for review of the Administrative Committee have been set forth in an employee handbook, which states:

An appeal procedure has been established to protect your rights to benefits under the plan.
If your initial claim or application for benefits is denied by the Division Pension Committee, you will receive written notice describing the specific documented reasons for the denial. You will also receive any material or information necessary to perfect the claim, along with an explanation of why the information is needed.
If you think you are entitled to receive a benefit from the plan which has been denied by the Division Pension Committee, you have the right to appeal if you do so within six months after receiving written notice of the denial.
You must file your appeal in writing with the Pension Administrative Committee, c/o The Warner & Swasey Company, 11000 Cedar Avenue, Cleveland, Ohio 44106.
You will be given the opportunity to review any documents pertinent to your claim and will be entitled to a hearing, if you request one, to present your claim in person.
Within a reasonable period of time you will receive a written decision on the matter with a detailed explanation of the decision.

 The LMRA, Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-653, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965), and ERISA, Taylor v. Bakery & Confectionary Union and Industrial International Welfare Fund, 455 F. Supp. 816, 820 (E.D.N.C.1978); Fox v. Merrill Lynch & Co., Inc., 453 F. Supp. 561, 565-566 (S.D.N.Y.1978), Distinguishing Lewis v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 431 F. Supp. 271 (E.D.Pa.1977); Hammil v. Hoover Ball & Bearing Co., 85 L.R.R.M. 2231, 2233 (E.D.Pa.1973), both require an attempt to exhaust exclusive internal remedies established by contract to settle disputes before resorting to direct legal redress in the federal courts.

 Lucas has responded to the issue of the failure to exhaust internal remedies by stating that, due to Warner's failure to proceed with the requested medical examination, the defendant has in effect waived any provisions of the collective bargaining ...

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