Plaintiff's argument ignores the clear provisions of § 1055(c). Specifically applicable to the pre-retirement joint and survivor annuity required in § 1055(b), this paragraph imposes the burden on the participant to affirmatively elect this option. The effect of § 1055(c) then is to make the pre-retirement joint and survivor annuity option effective only when the participant so elects. Section 1055(c), is a carefully carved out exception to the opt-out provisions of § 1055(e), and its language is clear. See, H.Conf.Rep. No. 1280, 93rd Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad. News 5060.
Having concluded that the pre-retirement joint and survivor annuity option is not automatically effective, we turn to plaintiff's second argument to excuse her husband's failure to elect. Plaintiff's argument, simply put, is that the deceased was denied the opportunity to elect the option because defendant's selected means of notice was improper and ineffective.
Section 1055(c) and (e) require defendant to provide such notice and informational materials as are necessary to apprise the participant of his option and permit him to intelligently exercise it. In the instant case, defendant sent several packets of material on the pre-retirement joint and survivor annuity option to the deceased by certified mail, return receipt requested.
Plaintiff claims that the deceased never received these materials and, therefore, had no opportunity to elect the option. It is argued that defendant's use of certified mail failed to comply with applicable regulations regarding transmittal of materials and thereby resulted in the deceased's failure to receive them. A review of the subject regulations and the undisputed facts of record compel a contrary conclusion.
The general disclosure requirements set forth at 29 C.F.R. § 2520.104(b)-1 provide guidelines for proper distribution of materials. The regulations direct plan administrators to "use measures reasonably calculated to ensure actual receipt of the material by plan participants." 29 C.F.R. § 2520.104(b)-1(b) (1). Although this section continues on to provide specific examples of proper means of distribution, including use of the mails, it does not purport to be exclusive. Also Treasury Regulation § 1.401(a)-11(c)(3)(C)(ii) approves "mailing" for distribution of materials regarding the pre-retirement joint and survivor annuity but does not disapprove use of certified mail.
Although use of certified mail is not specifically approved in the applicable regulations, it is certainly a reliable method of transmitting materials, one with the added advantage over first-class mail of a record of receipt. Rather than employing an inadequate or improper method, defendant has done more than required. Certified mail is a "means reasonably calculated to ensure actual receipt," and therefore satisfies the applicable regulations.
The return receipts contain the signature of a Donna Bomhold, a neighbor who used the Staats pool when they were away. In her affidavit, plaintiff avers that Bomhold was not authorized to receive their mail, and Mr. Staats never received it. It is further averred that Mr. Staats would have received materials mailed to his Post Office Box. These facts are irrelevant to a determination of the reasonableness of the means employed for transmittal. The defendant cannot be charged with knowledge of the Staats' vacation plans or the agency relationships of neighbors.
Also unpersuasive is plaintiff's argument that defendant should have made renewed efforts to send the materials when the receipt was returned with the signature of a person other than Mr. Staats. The return receipt simply indicates receipt of the mailed materials at the residence of the addressee. Delivery to the participant's residence would reasonably ensure receipt by the participant. Defendant is under no obligation to investigate the signature on the receipt or to determine that person's relationship to the participant's household. Defendant discharged its obligation by delivery to the participant's residence. It cannot be held accountable for the transgressions or unreliability of the person at the door.
We conclude therefore that defendant has satisfied all requirements for transmittal of the subject materials. The failure of Mr. Staats to receive the materials is no fault of the defendant or of its chosen means of delivery. In short, defendant's use of certified mail did not deprive the deceased of the opportunity to elect the option. Because the participant must elect the pre-retirement joint and survivor annuity, Mr. Staats' failure to make such an election deprives plaintiff of any right to survivor benefits.
For the reasons stated above, we conclude that plaintiff is not entitled to receive benefits under defendant's pension plan. No material issues of fact exist and summary judgment in favor of the defendant is appropriate.
Defendant has also moved for attorney's fees under 29 U.S.C. § 1132(g). An award of fees under the Act is within the discretion of the court. Although defendant has prevailed, there is no persuasive evidence of bad faith on the part of the plaintiff. The motion for award of attorney's fees will be denied.
An appropriate order will enter.
AND NOW this 7th day of Sept 1983, in accordance with the accompanying Opinion, IT IS ORDERED:
a) Defendant's Motion for Summary Judgment is GRANTED, and the action is hereby DISMISSED;
b) Defendant's motion for Attorney Fees is DENIED.
c) The Clerk is DIRECTED to mark this matter CLOSED.
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