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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

LORRAINE PLACIDO,

Plaintiff,

 v.

THE PRUDENTIAL INSURANCE

COMPANY OF AMERICA, NORTEL

NETWORKS LONG TERM

DISABILITY PLAN,

Defendants. /

AND RELATED COUNTERCLAIMS.

 /

No. C 09-00668 WHA

ORDER RE MOTIONS FOR

SUMMARY JUDGMENT

INTRODUCTION

Plaintiff Lorraine Placido has been disabled since 1996 due to a stroke she suffered in

1993. She received long-term disability (LTD) benefits through defendant Nortel Networks Long

Term Disability Plan, which was administered by defendant Prudential Insurance Company of

America. Pursuant to the terms of the plan, plaintiff’s LTD benefits were to be reduced by the

amount of other sources of income payable to her due to her disability, including social security

disability (SSD) benefits.

The Nortel Plan assisted plaintiff in applying for SSD benefits. Plaintiff and the plan

agreed that her LTD benefits would not be reduced while she applied for SSD benefits, but if

plaintiff ever received an overpayment of LTD benefits due to later receipt of SSD benefits, she

was obligated to reimburse the plan for the overpayment. She agreed to give the plan “any

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reasonable information” about her social security claim to allow it to determine the amount of

monthly LTD benefits to which she was entitled. In February 2002 her SSD monthly benefits

were drastically increased. Plaintiff, however, did not follow through on her agreement to notify

the plan. Because the plan did not know to offset her LTD benefits against these new SSD

monthly benefits, plaintiff received over $100,000 from it in overpaid LTD benefits.

Defendants eventually discovered on their own that plaintiff was receiving SSD benefits

to which she had not been entitled. Beginning in January 2007, defendants began offsetting

plaintiff’s monthly LTD benefits to correct for the overpayments she had received since 2002. In

this action, plaintiff challenges the offsets, demanding that defendants pay back the amounts

already offset. Plaintiff also claims that defendants’ cost-of-living adjustments to her benefits

calculations are not consistent with the plan’s terms. Defendants counterclaim for declaratory

relief that they were entitled to take the offsets and for restitution of the remaining overpayments. 

The parties have filed cross-motions for summary judgment. Because defendants were entitled to

recoup the overpayments through offsets of her monthly LTD benefits, plaintiff’s motion for

summary judgment is DENIED, and defendants’ motion for summary judgment is GRANTED IN

PART AND DENIED IN PART.

STATEMENT

Plaintiff was an employee at Nortel Networks (PRU0674). In 1993, she was hospitalized

due to a stroke that damaged her brain (PRU0274). She thereafter returned to work on a part-time

basis with limited and modified work capacities from 1994 to 1996 (PRU0955). Since May 1996,

plaintiff has been unable to work due to stroke-related dysfunctions including cognitive

impairment, focus problems and emotional control difficulties (PRU0263, PRU0955). It is

uncontested that plaintiff was and remains disabled. 

Nortel is the sponsor and plan administrator of the Nortel Long Term Disability Plan, an

employee welfare benefit plan governed by ERISA. In November 1996, plaintiff submitted a

claim for benefits to the plan (PRU0676). At that time, the plan was administered by CIGNA. In

December 1996, CIGNA approved plaintiff’s claim for LTD benefits with a date of disability of

November 1996 (PRU0882). The letter granting her claim (ibid.) stated:

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Your LTD benefits are generally reduced by any other benefits you

receive, and if so stated in your contract, by any social security

benefits your dependants receive on account of your social security

award. Please notify us immediately if you are receiving or should

become entitled to receive any income from other sources such as

social security disability or retirement, statutory disability,

employer sick leave, VA, workers’ compensation, no-fault,

employer pension, etc.”

The plan contained a section entitled “Reduction of Benefits Due to Other Income”

(PRU0688). It stated:

“LTD benefits will be reduced by other sources of

income payable to you or your Dependants because

of your disability or retirement.

For the purposes of this plan, “other income” includes:

. . .

• any other disability, retirement or unemployment benefits

required or provided for under any law of any government

— for example:

. . .

- Social Security benefits. . . including Dependents’

benefits, but not counting any increase in benefits

after STD benefit payments have started under this

plan.”

For example, if a person received LTD benefits of $900 per month under the plan, and

also received $500 per month in social security benefits, the person’s LTD benefits would be

reduced to $400 per month so that his or her total income would equal $900 a month (PRU0689).

The plan stated that, “[a]ny periodic or single lump sum payments [of other income]

received as a retroactive award may be allocated [for purposes of the plan] retroactively” (ibid.).

The plan further provided (PRU0690) that:

“If the Claims Administrator finds that the actual amount of Social

Security and other income benefits is different than the amount used

to determine your LTD benefits, these rules apply:

1. If LTD benefits have been underpaid, this plan will make a

lump sum payment to bring the total payments to the

amount that should have been paid.

2. If LTD benefits have been overpaid, this plan may either

require a lump sum reimbursement payment to the plan or

reduce or eliminate future payments. In this case, plan

minimums will not apply.”

Under the plan’s terms, it was the beneficiary’s responsibility to complete applications for

social security benefits and to undertake any necessary processes for appeal if such benefits were

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initially denied (PRU0689). The plan provided that, “[i]f you sign a Reimbursement Agreement,

your Social Security or other income will not be estimated while your applications and appeals

are pending” (ibid.).

Beginning in November 1996, the plan assisted plaintiff with her application for SSD

benefits (PRU944). It also contacted the SSA directly to provide information in support of

plaintiff’s application (PRU800).

In December 1996, plaintiff signed a one-page reimbursement agreement acknowledging

her understanding that her LTD monthly benefits would be reduced by any disability benefits she

received on her own behalf under the federal Social Security Act (PRU0374). Per the terms of

the reimbursement agreement, plaintiff’s LTD monthly benefits were not reduced while she

pursued social security benefits by the amount of benefits Nortel assumed she would receive. She

agreed that (ibid.):

“If I later receive Social Security Disability or Old Age Benefits for

myself or my dependants, I will reimburse Northern Telecom for

the full amount of any overpayment on my Long Term Disability

claim that results from these benefits. I understand that I must

reimburse Northern Telecom only for the amount of this

overpayment. I will make reimbursement in one lump sum, within

30 days after receiving my social security award. Northern

Telecom may, at its option, unilaterally recover the overpayment by

reducing future monthly benefits. I agree to give Northern Telecom

any reasonable information about my Social Security claim needed

to determine the monthly benefits I am entitled to under the Long

Term Disability policy.”

In January 1997, CIGNA notified plaintiff of an error in calculating her benefits which

had resulted in an underpayment and reimbursed her for the difference: $1497.47 (PRU0875).

In May 1997, the Social Security Administration decided to classify plaintiff’s LTD

benefits payments in lieu of California state disability insurance payments. It therefore decided to

offset plaintiff’s SSD benefits based on the amount of LTD benefits she was receiving from

CIGNA (PRU0804). The SSA informed plaintiff that her initial entitlement SSD award amount

was $1,314.60, but her actual monthly benefit would be only $38.00 due to the offset for her

CIGNA LTD benefits of $4,754.10 per month (ibid.).

In June 1997, CIGNA notified plaintiff that as a result of her SSD benefits of $38.00 per

month, her LTD benefits had been previously overpaid by $193.78 because her LTD monthly

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benefits had not been reduced while she pursued social security benefits (PRU0789). Plaintiff

therefore had a duty to reimburse the plan for the overpayment. Plaintiff acknowledged her duty

to repay this amount and sent a check to CIGNA for the amount (PRU0785).

In June 1997, CIGNA also informed plaintiff that SSA’s policy of offsetting her LTD

benefit as a replacement benefit for California state disability should not continue for more than

52 weeks because 52 weeks was the maximum benefit period for California state disability

benefits (PRU0445). CIGNA assisted plaintiff with her appeal of the SSA’s decision to offset her

LTD benefit. It instructed her that, “[o]nce this issue has been resolved, have the SSA provide

you with a corrected award notice and forward a copy to our office” (PRU0769). Thereafter,

CIGNA continued to pay plaintiff LTD benefits while taking an offset of only $38.00 per month

for SSD benefits (PRU0792).

In December 1997, plaintiff informed CIGNA that her SSD payment had been increased

to $66.00 per month (PRU0777). In February 1998, CIGNA contacted plaintiff and stated that it

expected her to be receiving “full” SSD benefits by that time (PRU772). In response, plaintiff

informed CIGNA that she had not yet heard a decision from SSA regarding her appeal (PRU771). 

CIGNA continued to offset only $38.00 per month. In June 1998, plaintiff informed CIGNA that

SSA had denied her appeal (PRU761).

On January 1, 2000, Prudential took over from CIGNA as claims administrator for the

plan. In December 2000, Prudential determined based on a review of plaintiff’s file that it would

continue to offset $38.00 per month. Prudential noted in the file, “cigna [sic] investigated this

unusual claim. Altho [sic] it is unusual for SSA to offset LTD, it has been known to happen in

CA” (PRU0460).

In February 2001, plaintiff received a notice from the IRS regarding her 1996 tax return

indicating a discrepancy between her tax return and her reported social security earnings

(PRU0439). In particular, the IRS determined that plaintiff’s income calculations for tax

purposes were incorrect because the SSA had incorrectly classified her SSD payments as

worker’s compensation benefits (ibid.). In May 2001, plaintiff thereafter requested that the SSA

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reconsider its classification of her SSD payments based on “new and material evidence”

(PRU0440).

A telephone call log in plaintiff’s file indicates that in March 2001, a Nortel employee

called Prudential regarding plaintiff. The call log notes that the Nortel employee “has info that

[plaintiff] is receiving ~1500.00/mo” of SSD benefits (PRU0505). The record does not indicate

how Nortel got this information, nor what follow-up was done by Prudential at that time.

In February 2002, the SSA sent plaintiff a letter that it would reclassify her LTD benefits

from Nortel as “a private disability pension and not considered in lieu of any state payment”

(PRU0441). The SSA would also pay her full benefits retroactively to December 1996 (ibid.).

Plaintiff’s monthly benefits from the SSA thereafter increased from $66.00 per month to

over $1,300.00 per month (PRU0296). In addition, the SSA paid plaintiff about $66,600 in back

benefits for the period from December 1996 to February 2002 (ibid.). Plaintiff did not notify

defendants of these adjustments to the SSD benefits that she received from the SSA.

In October 2006, Prudential reviewed plaintiff’s SSD benefits offset amount (PRU392). It

noted that the offset amount of $38.000 had continued because “AETNA had informed our office

that this sometimes happens with [social security] in California” (ibid.). Prudential, however,

noted that “[i]n 2001, a phone call was rec’d indicating that [plaintiff] was rec’g 1500/mo from

ssdb, no action was taken and appears it was done” (ibid.). Prudential stated that its plan going

forward was to confirm the amount of plaintiff’s social security benefit amount, then “make

necessary adjustment (ibid.).

Prudential requested that a third party vendor, Allsup Inc., obtain from the SSA plaintiff’s

social security payment history dating back to her date of disability (PRU0470). Allsup

determined that plaintiff had been paid an SSD benefit award amount of $1,314 effective

November 1996, and increasing amounts thereafter (PRU0296, 695).

In January 2007, Prudential reviewed the information obtained by Allsup and determined

that based on the retroactive award of SSD benefits that plaintiff had received, her LTD benefits

had been overpaid (PRU0659). Specifically, her LTD benefits had been offset by only $38.00 per

month of SSD benefits, rather than the full amount of her award of over $1300.00 per month. 

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Prudential calculated that the amount of overpayment was $159,702.84 (ibid.). As of January

2007, it began to offset plaintiff’s monthly LTD benefits to recover this amount (PRU0660). 

Plaintiff’s LTD payments were reduced by $1,332.00 per month (PRU0315–16).

In April 2007, plaintiff appealed Prudential’s decision to reduce her LTD benefits

(PRU0439–42). She demanded that Prudential negate the overpayment and pay back amounts

already offset. She noted the difficulties she had encountered due to SSA’s misclassification of

her SSD benefits and that she had completed all documents as requested at all times (ibid.). She

also noted that her medical condition adversely affected her thinking and that she “should not be

held accountable for decisions made beyond the scope of mental capability” (PRU0440). 

Prudential then contacted plaintiff’s physician’s office and obtained confirmation that plaintiff

was competent to endorse checks and handle the proceeds (PRU0516). Plaintiff also demanded

that Prudential pay COLA for 2006, which Prudential responded would be included in its

recalculation of her benefits (PRU0652). 

Plaintiff also argued that the plan also owed plaintiff for past Medicare Part B premiums

(PRU0361). Prudential thereafter acknowledged this underpayment and agreed to recalculate her

benefits (PRU0636). In May 2008, Prudential informed plaintiff that this underpayment would be

applied to her outstanding balance owed due to the overpayment she had previously received

(PRU0309). According to Prudential’s calculations, plaintiff’s benefits had still been overpaid by

$107,974.51 as of April 2008 (PRU0316). Prudential denied plaintiff’s appeal (PRU0634). 

Plaintiff thereafter brought the instant lawsuit.

ANALYSIS

1. THE STANDARD OF REVIEW IS ABUSE OF DISCRETION.

As a threshold matter, the applicable standard of review must be determined. A district

court review of denial of benefits under ERISA is de novo unless the plan gives the administrator

discretionary authority to determine eligibility for benefits. If the plan grants discretionary

authority, the administrator’s decision is reviewed for abuse of discretion. Metropolitan Life

Insurance Co. v. Glenn, 128 S. Ct. 2343, 2348 (2008).

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Here, the plan was originally administered by CIGNA. At that time, the plan documents

vested discretionary authority in the Nortel’s Employee Benefits Committee (“EBC”), granting

the EBC final discretionary authority to construe and interpret the plan, to decide all questions of

eligibility for benefits and to determine the amount of such benefits (PRU0984).

When Prudential was appointed as claims administrator of the plan in 2000, it entered an

administrative services agreement (“ASA”) with Nortel that designated Prudential as the

“appropriate named fiduciary” and conferred upon Prudential “discretionary authority to

determine eligibility for benefits[;] to determine the amount of benefits for each claim received;

and to construe the terms of the Plan” (Hanan Decl., Exh. B at Plan0000051). 

Plaintiff argues that the ASA is insufficient to grant discretionary authority because it is

not part of the original plan documents, but was instead created later. It cites no authority,

however, holding that an ASA entered into between an employer sponsor and a claims

administrator may not confer discretionary authority to the administrator as a matter of

contractual agreement to shift the standard of review to abuse of discretion. Here, the plan

documents grant discretionary authority to Nortel. The ASA, in turn, unambiguously conferred

that authority from Nortel to Prudential. This is sufficient to confirm discretionary authority upon

Prudential to make final decisions with respect to the payment of claims. Therefore, Prudential’s

decision to deny benefits shall be reviewed under the “abuse of discretion” standard of review.

2. DEFENDANTS WERE ENTITLED TO OFFSET OVERPAYMENTS TO PLAINTIFF.

Defendants here seek summary judgment with respect to plaintiff’s claims. Here, the

terms of the plan clearly and unambiguously provide that plaintiff’s LTD benefits shall be

reduced by SSD benefits. Furthermore, even though plaintiff’s LTD benefits would not be

reduced while she pursued SSD benefits by the amount of SSD benefits she was expected to

receive, plaintiff explicitly agreed that if she later received SSD benefits, she would reimburse

defendants for the full amount of any overpayment of her LTD benefits that resulted from

obtaining SSD benefits. The plan further provided that Nortel could opt to unilaterally recover

such an overpayment by reducing future monthly benefits. Defendants were therefore entitled to

recover the LTD benefits that should have been offset by her SSD benefits. 

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Plaintiff argues that the plan’s overpayment provision should not apply to her. As noted

above, a section of the plan entitled “Reduction of Benefits Due to Other Income” provided that

plaintiff’s LTD benefits would not be reduced by any increase in her social security benefits

“after STD benefit payments have started under this plan” (PRU0688). Plaintiff argues that her

social security benefits were increased in this case from $38.00 to over $1300 per month after her

STD benefit payments started in 1996. 

This argument fails. Although plaintiff initially received only $38.00 per month because

the SSA applied an offset, her original benefits award was actually $1,314.60. The retroactive

payment by the SSA of the amounts that the SSA had previously offset therefore do not count as

an increase in benefits for purposes of the plan’s “Reduction of Benefits Due to Other Income”

section.

3. PLAINTIFF FAILED TO DISCLOSE THE INCREASE IN SSD BENEFITS SHE RECEIVED.

Plaintiff argues that the statute of limitations limits any recovery of alleged overpayments

to benefits issued four years prior to the date defendants filed their counterclaims. There is a

four-year statute of limitations for fiduciaries to bring ERISA actions seeking to enforce a plan’s

terms. This statute of limitations begins to run once defendants had reason to know that a breach

had occurred. See Wise v. Verizon Communications Inc., 600 F.3d 1180, 1188 (9th Cir. 2010).

Plaintiff, however, fails to show that defendants had reason to know of plaintiff’s revised

social security award in 2006. In the one-page reimbursement agreement that plaintiff signed in

December 1996, she also agreed to “give Northern Telecom any reasonable information about

[her] Social Security claim needed to determine the monthly benefits” to which she was entitled

(PRU0374). Defendants reasonably relied upon this agreement and therefore did not more

quickly discover the increase in the SSD benefits she received. Pursuant to the agreement,

defendants were not obligated to monitor and investigate future revisions of plaintiff’s awards. 

Instead, it was plaintiff who was obligated to (but did not) inform defendants of any reasonable

information about her social security claim.

Plaintiff argues that defendants’ notes show that even though she failed to notify them,

they already knew of her increased benefits. The administrative record does not support her

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contention. Plaintiff relies on a note in defendants’ files dated 2001 stating that plaintiff had been

awarded over $1500 in monthly social security benefits. In fact, the record shows that defendants

believed that the SSA continued to offset this award against plaintiff’s LTD award such that she

received only $66.00 per month. The SSA revised this classification and retroactively paid

plaintiff the full amount of her SSD benefits award in 2002. Defendants’ 2001 note predated the

SSA’s revised decision, so it could not possibly reflect defendants’ knowledge of the revision. 

Because defendants did not have reason to know that plaintiff’s SSD benefits award had

been revised until 2006, their recovery is not barred by the statute of limitations except as

follows: defendants were informed in 1997 that plaintiff’s SSD payment had been increased to

$66.00 per month but they continued to take an offset of only $38.00 per month until 2007. This

difference of $28 per month is barred by the statute of limitations, and defendants may not now

recover for that amount.

4. DEFENDANTS’ COLA ADJUSTMENTS WERE NOT ERRONEOUS.

Plaintiff argues that defendants’ benefits calculations are not consistent with the plan’s

terms for two reasons. First, she asserts that the COLA should be based upon the total amount of

plaintiff’s benefits including the SSD benefits that she received. This argument is inconsistent

with the terms of the plan which provides in relevant part that the COLA adjustment “applies to

[a beneficiary’s] core and optional LTD benefits each year after the first year of LTD”

(PRU0691). Prudential has interpreted this to mean the amount of benefits that are actually

received, not SSD benefits. Defendants also note that SSD benefits are subject to a separate

COLA so that if plaintiff’s interpretation were adopted, it would amount to “double dipping” of

the COLA increases. Prudential’s interpretation of the plan’s language is the more reasonable

one, and at the very least is not an abuse of its discretion.

Second, plaintiff argues that the consumer price index used by Prudential to calculate the

COLA is incorrect. Prudential calculates the COLA using the Consumer Price Index from the

United States Department of Labor Consumer Price Index for Urban Wage Earners and Clerical

Workers (CPI-W). Plaintiff argues that the Consumer Price Index for All Urban Consumers

(CPI-U) should be used instead. Plaintiff, however, does not explain why she is prejudiced by the

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use of the CPI-W, nor why the CPI-U should be used instead. She was, moreover, on notice since

at least 1999 that the CPI-W index would be used for her COLA adjustments (PRU0726). Prior

to her opposition to defendants’ motion for summary judgment, she did not object to the use of

the CPI-W index. For these reasons, her argument regarding which index should be used fails.

5. DEFENDANTS’ COUNTERCLAIMS ARE MOOT.

Plaintiff finally argues that defendants’ counterclaims are for money damages and

therefore are inappropriate as ERISA claims. Under ERISA, a fiduciary may only assert claims

for equitable relief, not for payment of past due money. Great-West v. Knudson, 534 U.S. 204,

215 (2002). In Knudson, the Supreme Court held that an ERISA plan’s stop-loss carrier could not

sue a plan participant for recovery of a tort settlement that the participant obtained from a

separate tortfeasor. The plan sought to recoup funds it had previously paid for the participant’s

medical care. The Supreme Court held that the plan was merely seeking legal relief, not equitable

relief, and therefore could not bring a claim as a fiduciary under Section 502(a)(3) of ERISA. 

Ibid.

Knudson, however, is distinguishable from the present action. Unlike Great-West,

defendants here do not simply seek “to impose personal liability . . . for a contractual obligation

to pay money.” Knudson, 534 U.S. at 210. Instead, they seek recovery through a constructive

trust or equitable lien on a specifically identified source— plaintiff’s LTD benefits payments —

not from plaintiff’s assets generally, as would be the case with a contract action at law. The

present action therefore more closely resembles the equitable action in Sereboff v. MidAtlantic

Medical Services, Inc., 126 S.Ct. 1869 (2006), where the Supreme Court allowed a fiduciary to

recover from a beneficiary for reimbursement of medical expenses paid by an ERISA plan

because (the Supreme Court held) the action was equitable in nature.

In all events, this order need not decide whether defendants’ counterclaims are equitable

or legal in nature because defendants have now recovered through offsets the entire amount of the

plan’s overpayment to plaintiff that is the subject of this lawsuit. Defendants therefore agree that

their counterclaims are moot and should be dismissed.

CONCLUSION

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For the foregoing reasons, plaintiff’s motion for summary judgment is DENIED. 

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Defendants’ motion for summary judgment as to plaintiff’s claims is GRANTED, and as to their

own counterclaims is DENIED AS MOOT.

IT IS SO ORDERED.

Dated: August 5, 2010. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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