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Kusma v. Merck & Co.

March 13, 2009


The opinion of the court was delivered by: Rufe, J.


Plaintiff Sandra E. Kusma brings this action against Defendants Merck & Company, Inc. ("Merck") and the Retirement Plan for the Salaried Employee of Merck & Co., Inc. ("Plan") alleging violations of the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq. Now before the Court are the parties' Cross-Motions for Summary Judgment, the parties' Responses and Replies, as well as Plaintiff's Sur-reply. For the reasons set forth below, Defendants' Motion will be granted and Plaintiff's Motion denied.


A. The Plan & Plan Documents

The Plan is funded by Merck through payments into a trust fund of "all amounts which it deems necessary or appropriate to properly fund the plan."*fn1 The trust fund monies are for "the exclusive purpose of providing benefits to Participants and their Beneficiaries and defraying the reasonable expense of administering the Plan."*fn2 The Plan names Merck as the Plan Administrator.*fn3 It also delegates responsibility for the supervision and administration of the Plan to a named fiduciary, the Employee Benefits Committee ("Committee").*fn4

The Committee has "full discretionary power and authority to make factual determinations, to interpret the Plan, to make benefit eligibility determinations, and to resolve all questions arising in the administration, interpretation and application of the Plan."*fn5 All initial claims, however, are determined by a Claims Administrator designated by Merck.*fn6 If a claim is denied by the Claims Administrator, the Plan participant may appeal that denial to the Committee.*fn7 According to the Plan, the Claims Administrator and the Committee "have discretion to review and determine related factual questions and to construe the terms of the Plan" when determining claims for benefits.*fn8

The terms of the Plan require Plan participants to elect a payout option determining how they will receive payment of their pension benefits.*fn9 The Plan describes several payout options, including two labeled as "Life Annuity" and "Social Security Leveling."*fn10 The Life Annuity is a "monthly payment of a Participant's Accrued Benefit payable to the Participant during his or her life."*fn11 The Social Security Leveling payout option is defined as:

A monthly payment payable to the Participant's Social Security Benefit during his or her life of such amount that, with the Participant's Social Security Benefit... he or she will receive, so far as possible, the same amount each year before and after such Social Security Benefit commences, which benefit shall be the Actuarial Equivalent of the benefit to which the Participant would be entitled under Seciton 6.1(a) above.*fn12

According to the terms of the Plan, this election "may be made or revoked at any time during the 90-day period ending on the Participant's Annuity Starting Date, but shall become irrevocable after such date."*fn13 The "Annuity Starting Date" is defined by the Plan as "the first day of the first month for which an Accrued Benefit is payable as an annuity or, in any other form, and shall not occur prior to the first day on which all events have occurred which entitle the Participant to payment of such benefit, including but not limited to terminating employment, making necessary elections, and obtaining required consents, as the case may be."*fn14 It is undisputed that Plaintiff's Annuity Starting Date was January 1, 2007 and that she did not revoke or change her election at any time before that date.

At some point, Plaintiff was supplied with a Summary Plan Description ("SPD") of the Plan.*fn15 The SPD informs Plan participants that they must select a payout option, or form of benefit, to determine how their pension benefits will be paid.*fn16 The SPD explains that "[a]ll forms of benefits are actuarially equivalent to the Life Income for You Alone. That means that based on the actuarial assumptions used by the Retirement Plan-chiefly, mortality and interest rates-all forms of benefit have the same value."*fn17 Next, the SPD explicitly states that the "form of payment you select becomes irrevocable on your Annuity Starting Date."*fn18 The SPD defines "Annuity Starting Date" as the "first day of the month after you have done everything required by the Retirement Plan for you to commence your benefit."*fn19

Listing the payout options that Plan participants can select, the SPD first lists "Life Income for You Alone," stating that "[u]nder this option, you will receive a monthly pension benefit as long as you live. Although this option provides you with the largest amount of monthly income while you live, when you die, no payments will be made to your spouse or survivors."*fn20 The SPD also provides that if a Plan participant decides to receive benefits before the age of sixty-five, that participant can choose the "Social Security Level Income Benefit."*fn21

Under this payout option, Plan participants receive a larger monthly income benefit from the Retirement Plan until you start receiving Social Security, which you can designate as age 62 or age 65. Then, once your Social Security Benefits begin, your Retirement Plan benefit is reduced. In this way, your income from the Retirement Plan alone, and then from the Retirement Plan plus Social Security, remains approximately level throughout your retirement years.*fn22

Before retiring, Plan participants are instructed to contact Employee Services to receive forms that must be completed to receive their pension benefits, a statement of the benefit amount they are entitled to receive and guidance on retirement options.*fn23

B. Plaintiff's Retirement & Selection of a Payout Option

Plaintiff was employed by Merck and a contributing participant in the Plan until 2003 when she was laid off.*fn24 Plaintiff still received certain benefits from the Plan until she was eligible to retire at age 55.*fn25 A Retirement Benefits Summary ("RBS") was provided to Plaintiff on November 8, 2003, when she was no longer employed by Merck and was being bridged to retirement.*fn26 The RBS assumed Plaintiff would retire on January 1, 2007, and estimated the monthly payments she would receive from the Plan under four different payout ...

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