1/1483580.1

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

FRANK BLAIR, 

 Plaintiff, 

v. 

AETNA LIFE INSURANCE 

COMPANY, AMERICOLD 

LOGISTICS, LLC, DAWN 

SANFORD, et al., 

 Defendants. 

)

)

)

)

)

)

)

)

)

)

)

)

Civil Action No. 

2:06-cv-00651-MEF-SRW 

DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE

Defendants Aetna Life Insurance Company (“Aetna”), AmeriCold 

Logistics, LLC (“AmeriCold”), and Dawn Sanford hereby submit this reply 

to Plaintiff’s Memorandum Brief in Response to Defendants’ Aetna Life 

Insurance Company, AmeriCold Logistics, LLC and Dawn Sanford’s 

Motion to Dismiss or, in the Alternative, for Summary Judgment 

(“Plaintiff’s Brief”). Plaintiff’s claims should be dismissed because (1) 

Plaintiff did not exhaust administrative remedies and cannot genuinely argue 

that exhaustion should be excused or (2) Plaintiff is not entitled to benefits 

under the Plan’s terms. 

Case 2:06-cv-00651-MEF-SRW Document 10 Filed 08/28/2006 Page 1 of 7
1/1483580.1 2

I. PLAINTIFF DID NOT EXHAUST 

Plaintiff argues that his “complaint should not be dismissed for failure 

to exhaust any alleged administrative remedy in light of the fact that there is 

no proof that he received a copy of any document alerting him of his 

administrative remedy . . . .” Plaintiff’s Brief at 3. Plaintiff’s argument is 

wrong – the record does have such evidence. 

Plaintiff incorrectly argues that he should not be required to exhaust 

administrative remedies because he did not receive an insurance policy for 

Sandra Blair, his deceased ex-wife. Plaintiff’s Brief at 2-4. Under no 

circumstances, however, would, could or should Plaintiff have received an 

insurance policy for his deceased ex-wife or for anyone else with respect to 

coverage under the ERISA plan in question.1

 Instead, Defendants were only 

required to furnish Plaintiff a summary plan description2

 (“SPD”) for the 

 

1

 Plaintiff complains that he did not receive “a policy of insurance for Sandra 

Blair” and concludes that one was not issued for her. Plaintiff’s Brief at 3. 

Plaintiff misunderstands the Plan’s insurance. The Plan is funded by a group 

insurance policy, not individual policies. Plaintiff also appears to assume 

that the procedure for seeking administrative review of his claim would be 

found in a policy, whether “a policy of insurance for Sandra Blair” or a 

group policy. Not so. A description of Plan’s administrative remedies is 

contained in the SPD, not the group policy.

2

 Aetna provided the Certificate of Coverage and SPD to AmeriCold to 

distribute to Plan participants. See Notice of Removal, Ex. 2, Ex. A (the 

Certificate of Coverage and SPD) at Aetna 0002 & Aetna 0038; see also 29 

U.S.C. § 1024(b) (requiring publication of a summary plan description to 

participants); 29 C.F.R. § 2520.104b (same).

Case 2:06-cv-00651-MEF-SRW Document 10 Filed 08/28/2006 Page 2 of 7
1/1483580.1 3

Americold Logistics LLC Life Insurance and Accidental Death & Personal 

Loss Coverage Plan (the “Plan”). In other words, Plaintiff argues that his 

failure to exhaust administrative remedies should be excused because he did 

not receive a separate insurance policy that never did exist, never was 

supposed to exist, and never would have existed. 

The SPD, not any policy, is the Plan document that describes the 

claims submission process and Plan’s administrative remedies. See Aetna 

0039-040 (describing administrative procedure). The SPD also describes the 

life insurance benefits for a Plan participant such as Plaintiff and, if a 

participant’s spouse is covered, for the spouse. See Aetna 0007, 0016, 0029, 

& 0032 (describing coverage for a spouse). Under ERISA, Plaintiff was 

supposed to receive this SPD for his own coverage and for any spouse 

coverage; he was not supposed to receive a policy for himself, much less a 

policy or any other separate document for a spouse. 

In their brief, Defendants plainly relied upon this same SPD, as filed 

with the Court, to support their pending motion. Defendants’ Brief 

Supporting Motion to Dismiss or in the alternative for Summary Judgment 

at 1-2 & 4-5. Attached to an affidavit, this SPD is properly part of the 

record before this Court. Notice of Removal, Ex. 2, Ex. A. This same SPD 

at Aetna 0039-040 plainly describes the applicable administrative procedure. 

Case 2:06-cv-00651-MEF-SRW Document 10 Filed 08/28/2006 Page 3 of 7
1/1483580.1 4

Cf. Barnes v. Lacey, 927 F.2d 539, 543 (11th Cir. 1991) (holding that 

participants “have constructive knowledge of the Plan language”). 

Therefore, the record has evidence that Plaintiff knew or should have known 

of the administrative procedures. 

Perhaps carefully, Plaintiff does not argue that he did not receive an 

SPD. Instead, Plaintiff only argues that “there is no evidence before this 

Court that [Plaintiff] received a copy of a policy [for his deceased ex-wife]” 

and otherwise argues about not having received this non-existent policy. 

Therefore, record evidence shows that Plaintiff knew or should have known 

of the administrative procedures and is undisputed. 

Plaintiff’s only other argument as to exhaustion seems to be that the 

denial letter does not comply with some technical requirements. Plaintiff’s 

Brief at 3. This district has repeatedly dismissed similar attempts to excuse 

exhaustion.3

 E.g., Kirkland v. SSL Americas, Inc., 263 F. Supp. 2d 1326, 

1348-350 (M.D. Ala. 2003) (rejecting the plaintiffs’ arguments that 

exhaustion was excused by technical noncompliance); Stephenson v. 

 

3

 If the Court were not to grant summary judgment in favor of Defendants, 

Defendants would join with Plaintiff in asking for an administrative remand, 

rather than the parties’ further litigating whether Plaintiff’s failure to exhaust 

is excused. See Plaintiff’s Brief at 3 (arguing that, if Plaintiff’s failure to 

exhaust is excused, “the remedy . . . is to remand to the plan administrator,” 

rather than summary judgment.) As in Cromer-Tyler v. Edward R. Teitel, 

M.D., P.C., 2006 WL 2355415 *5 (M.D. Ala. Aug. 14, 2006), the remedy if 

exhaustion were excused would be a dismissal for an out-of-time appeal. 

Case 2:06-cv-00651-MEF-SRW Document 10 Filed 08/28/2006 Page 4 of 7
1/1483580.1 5

Provident Life & Acc. Ins. Co., 1 F. Supp. 2d 1326, 1331-32 (M.D. Ala. 

1998) (similar). Accordingly, Plaintiff’s complaint is due to be dismissed. 

II. PLAINTIFF’S CLAIM AND THE PLAN’S TERMS

It is telling that nowhere does Plaintiff argue that Sandra Blair and he 

were actually married and that he thus might be entitled to the Plan benefits 

under the terms of the Plan. Cf. Alday v. Container Corp., 906 F.2d 660, 

665 (11th Cir. 1990) (“[A]ny [participant’s] right to . . . benefits at a 

particular cost can only be found if it is established by contract under the 

terms of the ERISA-governed benefit plan document.”). Instead, Plaintiff 

merely points out that for the several months before his ex-wife died, 

premiums were deducted from his paycheck for her coverage.4

 Cf. Katz v. 

Comprehensive Plan of Group Ins, AllTel, 197 F.3d 1084, 1090 (11th Cir. 

 

4

 Defendants have now refunded the premiums. Due in part to personnel 

and to computer system changes, Defendants have been unable to determine 

why or how these premiums began to be deducted. Defendants’ informal 

investigation reflects that, in November 2002, Plaintiff unsuccessfully 

attempted to re-enroll his ex-wife (who had been dis-enrolled after the 

divorce). In March 2004, deductions for spousal premiums began to be 

made from his paychecks. No 2004 enrollment paperwork related to 

Plaintiff has been found. For the amount of life insurance benefits that 

Plaintiff claims, Plaintiff would have been required to “submit evidence of 

[his ex-wife’s] good health to Aetna and such evidence [be] approved by 

Aetna.” Aetna 0032. No such submission was made to Aetna. In June 

2004, Plaintiff’s ex-wife’s two-year struggle with lung cancer ended, as 

reflected on her Death Certificate. These circumstances present numerous 

unanswered fact questions, but no factual disputes that are material to 

Defendants’ pending motion for summary judgment. 

Case 2:06-cv-00651-MEF-SRW Document 10 Filed 08/28/2006 Page 5 of 7
1/1483580.1 6

1999) (under ERISA, holding that equitable estoppel is available only in 

limited circumstances that do not apply here). 

In essence, Plaintiff has admitted that, under the Plan terms, he is not 

entitled to Plan benefits. Accordingly, under ERISA, Plaintiff’s complaint is 

due to be dismissed. 

III. CONCLUSION 

Accordingly, Defendants respectfully request this Court to dismiss 

this action or, alternatively, to grant summary judgment in favor of 

Defendants, based on Plaintiff’s failure to exhaust administrative remedies 

or on Plaintiff’s not being entitled to Plan benefits under the Plan’s terms. 

 s/ James S. Christie, Jr. 

James S. Christie, Jr. (CHR011) 

Amelia T. Driscoll (DRI016) 

Bradley Arant Rose & White LLP

1819 Fifth Avenue North 

Birmingham, AL 35203-2104 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

jchristie@bradleyarant.com

adriscoll@bradleyarant.com

Attorneys for Defendants 

Aetna Life Insurance Company 

AmeriCold Logistics, LLC, 

and Dawn Sanford 

Case 2:06-cv-00651-MEF-SRW Document 10 Filed 08/28/2006 Page 6 of 7
1/1483580.1 7

CERTIFICATE OF SERVICE 

 I hereby certify that on August 28, 2006, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system, which will 

send notification of such filing to the following: 

Ralph Bohanan, Jr. 

Bohanan & Knight, P.C. 

Suite 318 North 

Birmingham, Alabama 35243 

and I have mailed by United States Postal Service the foregoing to the 

following non-CM/ECF participants: 

 None. 

 

 Respectfully submitted, 

 

 s/ James S. Christie, Jr. 

James S. Christie, Jr. (CHR011) 

Case 2:06-cv-00651-MEF-SRW Document 10 Filed 08/28/2006 Page 7 of 7