1

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Steven Roque, )

) No. 12 C 3788

Plaintiff, )

)

v. ) Judge Thomas M. Durkin

)

Roofers’ Unions Welfare Trust Fund, )

Julia A. Rachal, and the )

Board of Trustees of the Roofers’ Unions )

Welfare Trust Fund, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Steven Roque brings this suit against Defendants Roofers’ Unions

Welfare Trust Fund (“Fund”), Julie Rachal, and the Board of Trustees of the 

Roofers’ Unions Welfare Trust Fund (“Trustees”). The amended complaint sets forth 

a claim for benefits under § 502(a)(1)(B) of the Employee Retirement Income 

Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B) (“Count I”); requests that the 

Fund be estopped from denying coverage because it made knowing 

misrepresentations about Roque’s coverage (“Count II”); and alleges a breach of 

fiduciary duty under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), against Rachal for 

failing to properly respond to participant inquiries (“Count III”), a breach of 

fiduciary duty under § 502(a)(3) against Rachal for failing to adequately train 

authorized representatives to properly respond to such inquiries (“Count IV”), and a 

breach of fiduciary duty against the Trustees for failing to properly monitor Rachal 

and Fund representatives (“Count V”). R. 25, Am. Compl. Defendants move to 
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dismiss Counts II, III, IV, and V. R. 27. For the following reasons, defendants’ 

motion to dismiss is granted. Counts II, III, IV, and V are dismissed. Only Count I 

of Roque’s amended complaint remains. 

Background

The following relevant facts, drawn from Roque’s amended complaint, are 

accepted as true, and all reasonable inferences are drawn in his favor. See Tamayo 

v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Roque is employed by M.W. 

Powell Company. R. 25 at ¶ 7. As an employee of M.W. Powell Company, Roque was 

covered by the Fund pursuant to a collective bargaining agreement. Id. The Fund is 

an employee welfare benefit plan, and Roque, as an employee, received coverage 

under the Plan. Id. at ¶ 8. Defendants Trustees and Rachal, as the Fund Manager, 

administered the Plan. Id. at ¶¶ 9-12. 

On March 19, 2001, Roque, while on the job as a roofer, fell through a roof 

and sustained injuries to his heel, pelvis, and back and Reflex Sympathetic 

Dystrophy Syndrome in his foot. Id. at ¶ 14. As a result of his injuries, a spinal cord 

stimulator was inserted into his back on November 22, 2006. Id. at ¶¶ 14, 16. 

Workers’ compensation insurance covered Roque’s medical expenses, including the 

cost of the procedure. Id. at ¶¶ 15, 16. Roque settled his workers’ compensation 

claim for $90,000. Id. at ¶ 19. The settlement agreement provided that Roque would 

assume all responsibility for any future medical expenses. Id. at ¶ 21. In May 2011, 

Roque began experiencing pain in his foot. Id. at ¶ 22. Dr. Vikram Patel, Roque’s 
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surgeon, advised him that the spinal cord stimulator may need to be repaired or 

replaced. Id.

The Plan and summary plan description (“SPD”) describe the health benefits 

available under the Fund. R. 28, Exhs. A, B.1 Both the Plan and SPD excluded 

coverage for treatment of injuries incurred while performing an act of employment 

where the benefits were payable by workers’ compensation. The Plan provides: 

No PLAN payment of any kind, except under the Loss of Life Benefit, 

will be made as a result of, or for charges incurred for the treatment of, 

any accidental bodily injury, sickness, or disease sustained while the 

individual was performing any act of employment or doing anything 

pertaining to any occupation or employment for remuneration or profit 

or for which benefits are or may be payable in whole or in part under 

any Workers’ Compensation Law, Employer’s Liability Law, 

Occupational Diseases Law, or similar law. 

R. 28-2 at 13, Article 3.01.C.15 (emphasis in original). The SPD similarly provides:

Charges incurred or loss sustained in connection with, or as the result 

of, any accidental bodily injury, sickness or disease sustained while the 

Covered Person is performing any act of employment (including selfemployment) or doing anything pertaining to any occupation, 

employment or activity, for remuneration or profit whether or not 

benefits are payable in whole or in part under any Workers’ 

Compensation Law, Employer’s Liability Law, Occupational Diseases 

Law or similar law. 

R. 28-15 at 17. The SPD further advises participants: “If you have any questions 

about your benefits or your status under the Plan, contact the Fund Office at the 

address or telephone number shown on the inside of the front cover.” R. 25 at ¶ 31.

 1 Defendants attached the Plan and SPD to their motion to dismiss. Because these 

documents are referred to in the amended complaint and are central to Roque’s

claims, the Court may consider them in ruling on the motion to dismiss. Geinosky v. 

City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012).
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On June 3, 2011, Roque contacted the Fund Office to ask whether the Fund 

would cover the proposed procedure. Id. at ¶ 23. Roque spoke with a Fund 

representative who gave him the telephone number of Med-Care Management 

(“Med-Care”)—a third party contracted by the Fund to determine whether a 

procedure is covered under the terms of the Plan—and advised him to speak with

Med-Care for answers to his questions. Id. at ¶¶ 23, 33. Roque called the Fund 

Office again later that day. Id. at ¶ 26. During that phone call, Roque told the Fund 

representative that: (1) he suffered a workplace injury in 2001; (2) the workers’ 

compensation insurer covered the cost of the insertion of the spinal cord stimulator; 

(3) the workers’ compensation case was closed with no open-ended settlement; and 

(4) the workers’ compensation insurer would not pay for another spinal cord 

stimulator. Id. at ¶ 27. The Fund representative informed Roque that the Fund 

Office did not confirm coverage for such a procedure, that Med-Care provides

approval for procedures, and that Roque should follow up with Med-Care. Id.

Following this phone call, Roque called Med-Care to confirm coverage for the 

proposed procedure. Id. at ¶ 36. He provided the same information to Med-Care that 

he provided to the Fund Office in his second phone call, and Med-Care informed him 

that if workers’ compensation denied the claim, the Plan would pay the claim. Id. at 

¶¶ 36-37. 

On June 9, 2011, Med-Care issued a notification of authorization for 

outpatient admission for reflex sympathetic dystrophy of the lower limb, equipment 

failure, and replacement of the spinal cord stimulator. Id. at ¶ 39; see also R. 25-5, 
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Notification of Outpatient Admission. The notification was issued to Roque and his 

health service providers. Id. The notification further provided that “[t]his 

notification does not guarantee payment by the patient’s medical plan. Payment is 

subject to the patient’s eligibility and coverage limitations at the time services are 

delivered. . . . For confirmation of eligibility and benefits, please call the Fund 

Office.” R-25-5. Roque’s surgery was scheduled for June 28, 2011. R. 25 at ¶ 41. 

After issuance of the authorization, Med-Care sent a copy of the pre-approval notice 

to the Fund Office, and on it, Med-Care notified the Fund Office that liability for the 

surgery may be completely or partially the responsibility of another insurer because 

of “an injury which may be covered by Workers’ Compensation Insurance.” Id. at ¶ 

40; see also R. 25-6. Between the June 9, 2011 receipt of the notification of the 

approval of the procedure and the June 28, 2011 surgery, the Fund Office did not 

contact Roque to advise him that the surgery may be excluded. R. 25 at ¶ 43. 

The surgery was performed on June 28, 2011. Id. at ¶ 44. After the surgery, 

the Fund Office sent Roque Medical/Injury/Accident Information forms. Id. at ¶ 49; 

R. 25-7, Exh. 7. Roque returned these forms, noting on them “Not a new accident.

‘2001’ accident paid through. Comp. case is now closed, no open medical. They will 

not cover another spinal cord stimulator since case was settled in ’07.” R. 25-7. He 

also submitted a copy of the workers’ compensation settlement. R. 25 at ¶ 49. 

On August 15, 2011, the Fund Office informed Roque that his claim was 

denied. Id. at ¶ 50. On August 23, 2011, citing the exclusion from the SPD, the Plan 

reiterated it was not covering Roque’s claim. Id. at ¶¶ 51-52. Roque appealed the 
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August 23, 2011 benefit denial, arguing that the Plan’s exclusion was narrower 

than the SPD’s exclusion, and that under the Plan’s language, his claim was not 

excluded. Id. at ¶ 54; see also R. 28-23, Exh. D. Following an appeals hearing before 

the Trustees, the Fund’s Claim Review Committee upheld the denial of Roque’s 

claim. R. 25 at ¶¶ 61, 66. Roque then filed this lawsuit, raising five claims under 

ERISA. R. 25. 

Legal Standard

The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of 

the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City 

of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to 

dismiss, the complaint must provide “a short and plain statement of the claim 

showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to 

provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 555 (2007). The Seventh Circuit has explained that this 

rule “reflects a liberal notice pleading regime, which is intended to focus litigation 

on the merits of a claim rather than on technicalities that might keep plaintiffs out 

of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (internal quotation 

marks omitted). While “detailed factual allegations” are not required, “labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not 

do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A 
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claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 602 (7th Cir.

2009) (quoting Iqbal, 556 U.S. at 678).

Analysis

I. Sufficiency of Allegations for Estoppel Claim 

Defendants first contend that Count II of Roque’s amended complaint must 

be dismissed as a matter of law because it fails to plead a plausible estoppel claim. 

According to Roque, the Fund, through Med-Care, knowingly misrepresented that 

his surgery would be covered by the Plan if his workers’ compensation insurance did 

not cover it and that Med-Care, rather than the Fund Office, would determine if the 

Plan covered the procedure. R. 25 at ¶¶ 89, 90. Roque then detrimentally relied on 

these misrepresentations and proceeded with the surgery. Id. at ¶ 90. As a result of 

these misrepresentations, Roque requests that the Fund be estopped from denying 

coverage for his surgery. Id. ¶ 92. 

“The written plan document ordinarily governs ERISA plan administration.” 

Kannapien v. Quaker Oats Co., 507 F.3d 629, 636 (7th Cir. 2007). Thus, “statements 

or conduct by individuals implementing the plan can only estop an employer from 

enforcing the plan’s written terms in ‘extreme circumstances.’” Id. (quoting Vallone 

v. CNA Fin. Corp., 375 F.3d 623, 639 (7th Cir. 2004)). To prevail on an estoppel 

claim under ERISA, the Seventh Circuit requires that a plaintiff demonstrating 

extreme circumstances also show: “(1) a knowing misrepresentation; (2) made in 
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writing; (3) reasonable reliance on that misrepresentation by the plaintiff; and (4) 

that the reliance was to the plaintiff’s detriment.” Pearson v. Voith Paper Rolls, Inc., 

656 F.3d 504, 509 (7th Cir. 2011); see also Coker v. Trans World Airlines, Inc., 165 

F.3d 579, 585 (7th Cir. 1999). The Seventh Circuit has recognized an exception to 

this general rule “when plan documents are ambiguous or misleading, in which case 

oral representations as to the meaning of the documents may be relevant.” Vallone,

375 F.3d at 639; see also Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 588 (7th 

Cir. 2000). Under this exception, oral misrepresentations may be a basis for an 

ERISA estoppel claim if (1) the plan was ambiguous; and (2) an agent of the plan, or 

someone with apparent authority to interpret the plan, made the oral 

misrepresentations. Bowerman, 226 F.3d at 588. 

Defendants contend that Roque has failed to state a plausible claim for 

estoppel.2 According to the defendants, Roque cannot prevail on his estoppel claim 

because he has not established a knowing, written misrepresentation. Roque 

counters by invoking the exception to the general rule, arguing that the language of 

the plan exclusion is ambiguous. Roque thus contends that the oral representations 

made to him can support an estoppel claim.

Here, the Plan provision at issue, Article 3.01.C.15, provides: 

 2 At the outset, defendants argue that an estoppel claim cannot be brought against 

a multi-employer plan. This Court, however, need not answer this question for even 

if these claims are recognized against a multi-employer plan, the Court finds that 

Roque has failed to state a plausible claim for estoppel. See Pearson, 656 F.3d at 508

(declining to resolve question of viability of claim where answer was unnecessary to 

outcome of case). 
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No PLAN payment of any kind, except under the Loss of Life Benefit, 

will be made as a result of, or for charges incurred for the treatment of, 

any accidental bodily injury, sickness, or disease sustained while the 

individual was performing any act of employment or doing anything 

pertaining to any occupation or employment for remuneration or profit 

or for which benefits are or may be payable in whole or in part under 

any Workers’ Compensation Law, Employer’s Liability Law, 

Occupational Diseases Law, or similar law. 

R. 28-2 at 13. As defendants point out, Roque’s amended complaint does not include 

an allegation that the Plan was ambiguous. And the only argument Roque offers in 

support of his claim that the language is ambiguous in his response to defendants’

motion to dismiss is that the “as a result of” language in the exclusion is unclear 

and “could be construed multiple ways.” R. 29 at 12. Roque, however, does not set 

forth what other ways the language could be construed. In any event, Roque’s claim 

of ambiguity is unconvincing. The language of the Plan exclusion unambiguously 

excepts from plan payment any employment injury for which benefits are payable 

under workers’ compensation law. 

Because the language is not ambiguous, as Roque contends, he may only 

prevail on his estoppel claim if after viewing the allegations in his amended 

complaint in the light most favorable to him, he can demonstrate the elements of an 

estoppel claim. Roque has failed to do so. Even if Roque could demonstrate that a 

knowing misrepresentation was made, he cannot establish that the 

misrepresentation was in writing. Accordingly, his estoppel claim fails.3 Roque 

 3 Because the Court finds that Roque has not demonstrated an element of an 

estoppel claim, namely that defendants made a knowing written misrepresentation, 

this Court need not address whether Roque satisfies the remaining elements—

reasonable and detrimental reliance on the misrepresentation.
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focuses on the first element of an estoppel claim, arguing that the Plan knowingly 

misrepresented to him via his telephone calls with Med-Care representatives that 

his surgery would be covered. Even if that were the case—and the Court need not 

determine that here—Roque’s estoppel claim is doomed in any event because Roque

has not demonstrated (or even argued) that any intentional misrepresentation was 

in writing. The notification from Med-Care, while authorizing the surgery as 

medically necessary, explicitly warned Roque that the notification did not 

guarantee payment by the patient’s medical plan. R. 25-5. Because Roque has failed 

to establish a knowing, written misrepresentation, his estoppel claim cannot 

succeed. See Kannapien, 507 F.3d at 637-38 (where plan’s language was 

unambiguous, written representation is required to trigger estoppel). Accordingly, 

the Court finds that Roque has failed to plead sufficient facts to show a plausible 

claim for relief for estoppel under the narrow circumstances in which such claims 

are allowed and dismisses Count II of his amended complaint. 

II. Breach of Fiduciary Duty Claims under Section 502(a)(3)

Defendants next argue that the counts premised on a breach of fiduciary 

duty—Counts III, IV, and V—must be dismissed because they are merely 

repackaged claims for benefits under § 502(a)(1)(B), and where a claim for benefits 

is available under that section, equitable relief under § 502(a)(3) is unavailable as a 

matter of law. Defendants further argue that dismissal is warranted because even if 

Roque can bring breach of fiduciary duty claims under § 502(a)(3), he has not 

sufficiently pled them in his complaint, and additionally, Roque failed to exhaust 
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his administrative remedies regarding these claims. Counts III, IV, and V fail as a 

matter of law because an adequate remedy is available under § 502(a)(1)(B). 

Accordingly, the Court need not reach the remainder of defendants’ arguments. 

Roque brings Count I pursuant to § 502(a)(1)(B), which provides:

A civil action may be brought by a participant or beneficiary [of an 

ERISA plan] to recover benefits due to him under the terms of his plan, 

to enforce his rights under the terms of the plan, or to clarify his rights

to future benefits under the terms of the plan. 

29 U.S.C. § 1132(a)(1)(B). In Counts III, IV, and V, pled in the alternative to Count

I, Roque brings breach of fiduciary duty claims. As a remedy for these breaches, 

Roque seeks relief under § 502(a)(3), which provides that a civil action may be 

brought by a participant, beneficiary, or fiduciary 

(A) to enjoin any act or practice which violates any provision of this 

subchapter or the terms of the plan, or (B) to obtain other appropriate 

equitable relief (i) to redress such violations or (ii) to enforce any 

provisions of this subchapter or the terms of the plan. 

29 U.S.C. § 1132(a)(3).

In arguing that Roque cannot bring a claim under § 502(a)(3) because he 

already has an adequate remedy under § 502(a)(1)(B), defendants rely on Varity 

Corp. v. Howe, 516 U.S. 489 (1996). There, the Supreme Court described § 502(a)(3) 

as a “catchall” provision that acts “as a safety net, offering appropriate equitable 

relief for injuries caused by violations that § 502 does not elsewhere adequately 

remedy.” 516 U.S. at 512. The Court thus held that individuals could recover under 

§ 502(a)(3) but noted that “where Congress elsewhere provided adequate relief for a 

beneficiary’s injury, there will likely be no need for further equitable relief, in which 
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case such relief normally would not be ‘appropriate.’” Varity, 516 U.S. at 515. A

plaintiff thus cannot seek equitable relief under § 502(a)(3) when ERISA provides 

adequate relief by the right to bring a claim for the denial of benefits under § 

502(a)(1)(B). Varity, 516 U.S. at 515. 

The Seventh Circuit has not yet expressly determined whether, under Varity, 

a claim for benefits under § 502(a)(1)(B) bars a § 502(a)(3) claim for equitable relief. 

It has, however, recognized that “a majority of the circuits” have interpreted Varity

as holding that “if relief is available to a plan participant under subsection (a)(1)(B), 

then that relief is un available under subsection (a)(3).” Mondry v. Am. Family Mut. 

Ins. Co., 557 F.3d 781, 805 (7th Cir. 2009); see also Korotynska v. Metro. Life Ins. 

Co., 474 F.3d 101, 106 (4th Cir. 2006) (“[T]he great majority of circuits [5th, 6th, 

8th, 9th, and 11th] have interpreted Varity to hold that a claimant whose injury 

creates a cause of action under § 1132(a)(1)(B) may not proceed with a claim under § 

1132(a)(3).”). Indeed, other courts in this district have almost uniformly held that § 

502(a)(3) claims must be dismissed if relief may be obtained under § 502(a)(1)(B). 

See, e.g., Schatzel v. Cent. States SE. & SW. Areas Pension Fund, — F. Supp. 2d —, 

2013 WL 1729479, at *8 (N.D. Ill. 2013); Schultz v. Prud. Ins. Co. of Am., 678 F.

Supp. 2d 771, 779-80 (N.D. Ill. 2010); Hakim v. Accenture United States Pension 

Plan, 656 F. Supp. 2d 801, 810-11 (N.D. Ill. 2009) (citing cases); see also Krase v. 

Life Ins. Co. of N. Am., No. 11 C 7659, 2012 WL 4483506, at *3 (N.D. Ill. Sept. 27, 

2012); Zuckerman v. United of Omaha Life Ins. Co., No. 09 C 4819, 2010 WL 

2927694, at *6-7 (N.D. Ill. July 21, 2010); Rice v. Humana Ins. Co., No. 07 C 7175, 
13

2007 WL 1655285, at *3-4 (N.D. Ill. June 4, 2007); Moffat v. Unicare Midwest Plan 

Group 314541, No. 04 C 5685, 2005 WL 1766372, at *5 (N.D. Ill. July 25, 2005);

Jurgovan v. ITI Enters,, No. 03 C 4627, 2004 WL 1427115, at *4 (N.D. Ill. June 23, 

2004); Erikson v. Ungaretti & Harris-Exclusive Provider Plan, No. 03 C 5466, 2003 

WL 22836462, at *3 (N.D. Ill. Nov. 24, 2003). 

Roque discounts these cases, arguing that they were decided before the 

United States Supreme Court’s decision in Cigna Corp. v. Amara, — U.S. —, 131 S. 

Ct. 1866 (2011), which, according to Roque, changed the nature of equitable 

remedies available under § 502(a)(3), allowing for certain forms of monetary relief. 

This is questionable as the Court’s discussion of equitable remedies under § 

502(a)(3) is arguably dicta. See Amara, 131 S. Ct. at 1883 (Scalia, J. dissenting). In 

any event, Amara did not, as Roque contends, alter the rule announced in Varity. 

See Krase, 2012 WL 4483506, at *3 n. 5; see also Biglands v. Raytheon Employee 

Savings & Inv. Plan, 801 F. Supp. 2d 781, 786 (N.D. Ind. 2011). Even if the relief 

Roque seeks can be characterized as a form of monetary relief available under § 

502(a)(3) pursuant to Amara, as discussed below, Roque has failed to demonstrate 

that relief is unavailable under § 502(a)(1)(B). Because adequate relief is available 

under that subsection, relief is unavailable under § 502(a)(3). 

It bears mentioning that the aforementioned precedent does not foreclose 

simultaneous claims under § 502(a)(1)(B) and § 502(a)(3). Indeed, the door remains 

open for an ERISA plaintiff to bring a claim under both sections if the claims are 

truly distinct. Krase, 2012 WL 4483506, at *3. Only where § 502(a)(1)(B) provides 
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adequate relief is identical relief under § 502(a)(3) unavailable. At the same time,

however, an ERISA plaintiff is not permitted to “repackage” a denial-of-benefits 

claim as a claim for equitable relief under § 502(a)(3). Zuckerman, 2010 WL 

2927694, at *5-6. The focus of the inquiry here is whether § 502(a)(1)(B) provides 

adequate relief for Roque’s alleged injuries. If so, his § 502(a)(3) claims must be 

dismissed. In conducting this inquiry, the Court notes that whether Roque can 

actually recover under § 502(a)(1)(B) is not the relevant question. Rather, the issue 

is simply whether an adequate remedy is available. Hakim, 656 F. Supp. 2d at 812 

(stating “whether [p]laintiff’s § 502(a)(1)(B claim will succeed is irrelevant; the 

pertinent inquiry is whether [p]laintiff can state a claim under § 502(a)(1)(B)”) 

(citing cases). 

In Count I, Roque invokes section § 502(a)(1)(B) and requests monetary relief 

in the form of all past due benefits on his claims for his second surgery. R. 25 at ¶

86. In Counts III, IV, and V, Roque relies on § 502(a)(3) and seeks monetary relief

“in an amount equal to the cost of services Roque incurred because of the breaches 

of fiduciary duty.” Id. at ¶¶ 102, 115, 129. After a review of Roque’s amended 

complaint, the Court finds that the monetary relief that Roque seeks for his § 

502(a)(3) claims is the same relief he seeks for his § 502(a)(1)(B) claim. See, e.g.,

Krase, 2012 WL 4483506, at *3 (“Krase seeks the same relief for the same injury 

under both subsections: ‘life insurance benefits owed to him in the amount of 

$226,000.’”); Zuckerman, 2010 WL 2927694, at *7 (“In Plaintiff’s case, her alleged 

injury came solely because of the denial of her benefits; absent the denial of 
15

benefits, there would be no injury.”); see also Hakim, 656 F. Supp. 2d at 813 (noting 

that plaintiff’s §§ 502(a)(3) and (a)(1)(B) claims were supported by “identical” 

allegations, supporting conclusion that claims were duplicative); Biglands, 801 F.

Supp. 2d at 787 (stating effect of any identified equitable remedy “would merely be 

to compel the defendant to pay benefits due under the terms of the ERISA Plan, all 

of which is available to Plaintiff under § 1132(a)(1)(B)”). Indeed, Roque has not 

identified any relief he seeks that is different from his claim for benefits. If Roque 

were to succeed on his breach of fiduciary duty claims, the effect of that success 

would simply be the payment of the costs of the second surgery, which is the same 

as the benefits he alleges is owed to him under § 502(a)(1)(B). Because there is no 

injury separate and distinct from the claim of benefits, Roque’s request for relief 

under § 502(a)(3) is duplicative of that claim.

Roque contends nevertheless that § 502(a)(1)(B) is not an adequate remedy 

for his breach of fiduciary duty claims. Roque claims that he is not seeking benefits 

due from the Plan as a remedy for these breaches; instead, he seeks “make-whole 

monetary relief from the fiduciaries for the cost of the surgery with which he 

proceeded.” R. 29 at 8 (emphasis omitted). But this argument misses the point. By 

arguing that he seeks monetary relief for the cost of the surgery as a remedy for the 

breaches of fiduciary duty, Roque makes clear that he is, though under a different 

label, seeking the same relief sought for his denial-of-benefits claim, namely the 

costs of the second surgery. 
16

Citing Federal Rule of Civil Procedure 8(d)(2), Roque further contends that 

“[n]othing in Varity prevents a plaintiff from alternatively pleading benefits due 

under the plan and the value of the expense that would not have been incurred but 

for a breach of fiduciary duty of disclosure.” R. 29 at 7. According to Roque, his § 

502(a)(1)(B) claim arises from the interpretation of the plan and the non-payment of 

a claim whereas his § 502(a)(3) claim arises from defendants’ breaches by drafting 

vague language, inviting him to call them with questions, and then misleading him 

into believing a claim would be paid. Varity makes clear that an ERISA plaintiff is 

prohibited from repackaging a denial-of-benefits claim as a claim for equitable 

relief. “In other words, Varity and its progeny bar plaintiffs from getting two bites 

at essentially the same apple by asserting identical claims under §§ 502(a)(3) and 

502(a)(1)(B).” Zuckerman, 2010 WL 2927694, at *7. Dismissal of Roque’s equitable 

claims under Varity does not preclude him from raising alternative, inconsistent 

theories but from “asserting the same legal theory twice under separate labels.” Id.; 

Krase, 2012 WL 4483506, at *3. Here, the Court has determined that Roque is 

seeking the same relief—payment for his second surgery—for the same injury under 

both § 502(a)(1)(B) and § 502(a)(3). This is prohibited under Varity because 

adequate relief is available under § 502(a)(1)(B). Such a finding “does not prohibit 

[Roque] from asserting alternative theories of liability, but rather limits the 

availability of a remedial provision in ERISA’s civil enforcement framework.” 

Schultz, 678 F. Supp. 2d at 781 (citing cases). Roque is still free to pursue his theory

for relief under § 502(a)(1)(B). That avenue is not foreclosed. 
17

Finally, relying on Kenseth v. Dean Health Plan, Inc., 610 F.3d 452 (7th Cir. 

2010), Roque argues that he has adequately pled a breach of fiduciary duty claim. 

But this argument and this case go to the merits of Roque’s breach of fiduciary duty 

claims. The argument does not address the issue of whether Roque seeks identical 

relief under § 502(a)(3) and § 502(a)(1)(B). Nor does Kenseth address this issue for 

in Kenseth the plaintiff did not bring simultaneous claims under § 502(a)(3) and § 

502(a)(1)(B). 610 F.3d at 482-83. Rather, the plaintiff there only sought relief under 

a theory of equitable estoppel and § 502(a)(3). 

In sum, because Roque’s § 502(a)(3) claims can be remedied adequately under 

§ 502(a)(1)(B), he cannot seek identical relief under § 502(a)(3).4 Accordingly, 

defendants’ motion to dismiss Counts III, IV, and VI is granted. 

 4 Defendants additionally argue that Roque has failed to sufficiently plead his 

breach of fiduciary duty claims and exhaust his administrate remedies regarding 

them. Because the Court concludes that Counts III, IV, and V fail as a matter of law 

on an alternative ground, the Court need not reach these arguments. 
18

Conclusion

For the foregoing reasons, the defendants’ motion to dismiss is granted, and 

Counts II, III, IV, and V are dismissed. Only Count I of Roque’s amended complaint 

remains. 

ENTERED:

__________________________

Thomas M. Durkin

United States District Judge

Dated: May 21, 2013