D.N.J. Notes Split Re Ability to Pursue Benefits and Breach of Fiduciary Duty Claims Together under ERISA

Per DeVito v. Aetna, Inc., --- F.Supp.2d ----, 2008 WL 482847 (D.N.J. Feb. 25, 2008):

There is a split among circuits and within this district as to the effect of Varity Corp. v. Howe, 516 U.S. 489, 515 (1996) and Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002), on a plaintiff's ability to simultaneously pursue claims for benefits under § 502(a)(1)(B) and for breach of fiduciary duty under § 502(a)(3). See, e.g., Wolfe v. Lu, No. 06-0079, 2007 WL 1007181, *8-9 (W.D.Pa. Mar. 30, 2007) (noting that “the issue has been addressed by many district courts within our circuit with differing results” and collecting cases); Tannenbaum v. UNUM Life Ins. Co. of Am., No. 03-1410, 2004 WL 1084658, *3 (E.D.Pa. Feb. 27, 2004) (noting that “[t]he courts of appeals are split over whether Varity ever permits a plaintiff who has been denied benefits to simultaneously bring an action for benefits under § 1132(a)(1)(B) and an action for breach of fiduciary duty under § 1132(a)(3)(B)” and collecting cases). The Third Circuit has not expressly addressed this issue. See Wolfe, 2007 WL 1007181 at *8.

The Court is persuaded by the reasoning of those courts that have found that Varity does not establish a bright-line rule at the motion to dismiss stage of the case. See, e.g., Wolfe, 2007 WL 1007181 at *8-9; Parente v. Bell Atl. Pa., No. 99-5478, 2000 WL 419981, *3 (E.D.Pa. Apr. 18, 2000) (“Instead of a bright-line rule, Varity requires an inquiry into whether ‘Congress provided adequate relief for a beneficiary's injury.’ ”); Moore v. First Union Corp., No. 00-2512, 2000 WL 1052140, * 1 (E.D.Pa. July 24, 2000) (“As was recently noted by this Court, Varity does not propose a bright-line rule that a claim for equitable relief under § 1132(a)(3) should be dismissed when a plaintiff also brings a claim under § 1132(a)(1)(B)”); see also Crummett v. Metro. Life Ins. Co ., No. 06-1450, 2007 WL 2071704, *3 (D.D.C. Jul. 16, 2007) (“The court agrees that dismissal of § 502(a)(3) claims should not automatically occur simply because a complaint also brings § 502(a)(1)(B) claims.”).


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