insurer lead the insured to believe that the limitation period will not be enforced, the plaintiff made no allegations that the defendant suggested or stated that a delay in filing suit would be permissible. Esbrandt v. Provident Life and Accident Insurance Company, 559 F. Supp. 23, 25 (E.D.Pa. 1983), aff'd 722 F.2d 731. Accordingly, summary judgment will be entered as to claims relating to the VGA Plan.
Costs, expenses and reasonable attorney's fees may be awarded by a court, in its discretion, to either party in any action brought under Subchapter I, Protection of Employee Benefit Rights, of ERISA. 29 U.S.C. § 1132(g)(1). Five policy factors must be considered before a court may award such fees in an ERISA case: (1) the offending parties' bad faith or culpability; (2) the ability of the offending parties to pay the fees; (3) the deterrent effect such an award would have on the offending parties; (4) the benefit conferred on the pension plan members as a whole; and (5) the (ILLEGIBLE WORD) merits of the parties' position. Kann v. Keystone Resources, Inc., 575 F. Supp. 1084, 1096 (W.D.Pa. 1983).
Our consideration of these factors as they pertain to the facts of this case and our disposition of the issues here directs this Court to the conclusion that the plaintiff's application for attorney fees should be denied.
Although, plaintiff was alerted early in this litigation as to the need to exhaust his administrative remedies prior to attempting to litigate his claims in this court, it seems, on balance, that the exercise of this Court's discretion should result in a refusal also of defendants' application for attorney fees.
An appropriate order will be issued.
AND NOW, this 9th day of August, 1985, for the reasons contained in the accompanying Opinion,
IT IS ORDERED that:
(1) the Motion for Partial Summary Judgment filed by the Defendants, the Dow Chemical Company, the Dow Chemical Company as Plan Administrator of: the Dow Chemical Company Medical Care Program and the Dow Chemical Company Long Term Disability Income Protection Plan; the Dow Chemical Company Medical Care Program, and the Dow Chemical Company Long Term Disability Income Protection Plan and Metropolitan Life Insurance Company, is GRANTED IN PART and DENIED IN PART. The Motion is GRANTED as to any claims relating to the Long Term Disability Income Protection Plan and judgment is entered in favor of the above-named defendants and against the plaintiff, Robert A. Gray. The Motion is DENIED as to all claims relating to the Medical Care Program;
(2) all claims relating to the Medical Care Program are DISMISSED, sua sponte, without prejudice, as we have no jurisdiction since the plaintiff failed to exhaust his administrative remedies;
(3) the Motion for Summary Judgment filed by the defendants, American Home Assurance Company, the Dow Chemical Company, the Dow Chemical Company Voluntary Group Accident Plan and the Dow Chemical Company as Plan Administrator of the Dow Chemical Company Voluntary Group Accident Plan is GRANTED as to claims relating to the Voluntary Group Accident Plan, and judgment is entered in favor of the above-named defendants and against the plaintiff, Robert A. Gray;
(4) Plaintiff's Motion for Summary Judgment and for Attorney's Fees is DENIED; and
(5) all fee applications made by the Defendants are DENIED.
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