UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AGATHA SOKOLOSKI, 

Plaintiff-Appellant,

v.  No. 01-1963

METLIFE INSURANCE COMPANY,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CA-00-2314-WMN)

Argued: January 24, 2002

Decided: March 7, 2002

Before WILLIAMS and TRAXLER, Circuit Judges, and

Cynthia Holcomb HALL, Senior Circuit Judge of the

United States Court of Appeals for the Ninth Circuit,

sitting by designation.

Affirmed by unpublished opinion. Judge Traxler wrote the majority

opinion, in which Judge Williams joined. Senior Judge Hall wrote a

dissenting opinion. 

COUNSEL

ARGUED: Wayne Stuart Goddard, CUOMO & GODDARD, L.L.P.,

Towson, Maryland, for Appellant. John Snowden Stanley, Jr.,

SEMMES, BOWEN & SEMMES, P.C., Baltimore, Maryland, for

Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

TRAXLER, Circuit Judge: 

Baltimore Gas and Electric Company ("BG&E") maintained a

group disability plan for the benefit of its employees. Prior to September 1, 1997, long-term disability benefits were funded through a

group disability policy issued to BG&E by Life Insurance Company

of North America, an affiliate of the CIGNA insurance group

("CIGNA"). As an employee of BG&E, Agatha Sokoloski was

enrolled in and covered under the CIGNA plan. On September 1,

1997, Metropolitan Life Insurance Company ("MetLife") replaced

CIGNA as the disability carrier and issued a group disability policy

that took effect on September 1. 

Under the terms of the MetLife plan, an employee who was

employed by BG&E on September 1, 1997 would be eligible to participate in the plan as long as the employee had completed one full

month of "active work" prior to September 1, 1997. There is no dispute that Sokoloski met the eligibility requirements for the MetLife

plan. For coverage under the MetLife plan to become effective for an

eligible BG&E employee, the employee must have been "Actively at

Work" on September 1, 1997.1 The MetLife plan provides that "if [the

employee is] not Actively at Work, because of Disability on the date

[the employee’s] insurance would otherwise become effective, it will

become effective on the day [the employee] return[s] to Active

Work." J.A. 41. 

On September 1, when the MetLife plan replaced the CIGNA plan,

1Under the MetLife plan, an employee is considered "Actively at

Work" if "on a day which is one of [the employee’s] scheduled work

days . . . [the employee is] performing in the usual way all of the regular

duties of [the employee’s] work for the Employer on that day, . . . at one

of the Employer’s usual places of business . . . ." J.A. 37. 

2 SOKOLOSKI v. METLIFE INSURANCE COMPANY
Sokoloski was out on paid sick leave. She had stopped working on

August 25, 1997, and was awaiting knee surgery that was performed

on September 9. According to Sokoloski, she stopped working on

August 25 and began resting in bed before surgery because her back

and her knee were bothering her, she was having difficulty walking,

and "it was just too difficult for me to work as far as the pain." J.A.

109. 

In November 1997, Sokoloski submitted a claim for long-term disability benefits under the CIGNA plan, claiming that chronic pain in

both knees and her back prevented her from performing any occupation. CIGNA denied Sokoloski’s claim. With respect to Sokoloski’s

knee condition, CIGNA concluded that she had recovered well from

knee surgery and that she was "capable of performing [her] duties as

a telemarketer upon [her] discharge from Physical Therapy" on October 28, 1997. J.A. 130. As for Sokoloski’s back problem, CIGNA

determined that because treatment for that condition did not begin

until January 14, 1998, she had not yet satisfied the "Benefit Waiting

Period," a prerequisite for disability benefits under the CIGNA plan

that required Sokoloski to establish that she had been totally disabled

for a 180-day period. J.A. 130. CIGNA did not, however, deny coverage of Sokoloski’s back condition based on the September 1, 1997,

effective date of the MetLife plan; in fact, CIGNA conceded that "a

disabling condition may exist" but explained to Sokoloski that she

needed to serve "an additional benefit waiting period . . . based on the

start of this condition," J.A. 130, which CIGNA believed to be January 14.2

 CIGNA informed Sokoloski of her right to appeal the denial

of her claim, but she did not pursue benefits under the CIGNA plan

any further. 

Instead, Sokoloski submitted her claim for long-term disability

benefits to MetLife in May 1998. MetLife denied her claim because

she was not "Actively at Work" on September 1, 1997, and never

returned to work after that date. Therefore, according to MetLife, coverage under the MetLife plan never became effective for Sokoloski.

2Although CIGNA identified the beginning of treatment on January

14, 1998, as the date that Sokoloski’s disabling back condition began,

she testified at her deposition that she stopped working prior to September 1, 1997, because of pain in her knee and her back. 

SOKOLOSKI v. METLIFE INSURANCE COMPANY 3
Sokoloski followed the procedures under the MetLife plan for contesting this decision, but MetLife refused to change its position and

continued to deny coverage. 

Sokoloski filed a declaratory judgment action against MetLife in

state court. MetLife removed the case to federal court on the grounds

that Sokoloski’s claims related to benefits under a plan regulated by

the Employee Retirement Income Security Act (ERISA). See 29

U.S.C.A. § 1001 et seq. The parties filed cross-motions for summary

judgment. The district court agreed with MetLife that coverage under

the MetLife plan never became effective for Sokoloski because she

was out with her disability and thus not "Actively at Work" on September 1, 1997. The district court concluded that the MetLife plan

became effective for an employee who was not "Actively at Work"

on September 1, 1997, on the day the employee returns to active

work. Because Sokoloski never returned to work after August 25,

1997, the district court held that coverage under the MetLife plan

never became effective. Thus, the court granted summary judgment

to MetLife and denied Sokoloski’s cross-motion for summary judgment. We affirm the decision of the district court for the reasons

stated in its opinion.3

AFFIRMED

HALL, Senior Circuit Judge, dissenting: 

I respectfully dissent. 

Agatha Sokoloski had the bad fortune of requiring total knee

replacement that resolved one problem but created another. In addition to bad knees, Sokoloski had a preexisting back condition which

had required surgery in 1982. Sokoloski’s back condition was sufficiently serious to require a pre-surgery evaluation from her orthopae3On appeal, Sokoloski argues, for the first time, that she may also be

entitled to disability benefits under the "Continuity of Coverage" provision in the MetLife plan. We follow the rule "that issues raised for the

first time on appeal generally will not be considered." Karpel v. Inova

Health Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998). Sokoloski has

not given us a reason to withhold application of this general rule. 

4 SOKOLOSKI v. METLIFE INSURANCE COMPANY
dic surgeon before she was cleared for her knee operation. While the

knee surgery was a success, the difficulties that Sokoloski had with

her knees and her use of crutches and a cane to help her walk exacerbated her back condition to the extent that it became a separate source

of long term disability. 

In addition, Sokoloski also had bad timing. Beginning on August

26, 1997 she took sick leave from BG&E on doctor’s advice in order

rest and stay off her legs in preparation for her operation. Due to her

multiple disabilities, she did not return and was routinely terminated

after six months once her sick leave had run out. But for the fact that

the events that left Sokoloski disabled happened to coincide with a

decision of her employer to switch insurance carriers, there is little

question that she would have been eligible for long term insurance

benefits with CIGNA and would probably not be before this Court.1

Finally, Sokoloski has also now gotten a bad result from the legal

system. Like the majority, I agree with the District Court’s holding

that Sokoloski was not "Actively at Work" at any point on or after

September 1, 1997 and was not covered on that basis. However, that

should not end the matter. The Fourth Circuit has established that

issues raised for the first time on appeal may be considered in "exceptional circumstances." United States v. One 1971 Mercedes Benz 2-

Door Coupe, 542 F.2d 912, 915 (4th Cir. 1976). As Sokoloski has

argued for the first time before this panel, and as the MetLife policy

documents make clear, she has a second basis for claiming benefits

under the MetLife plan: namely its "Continuity of Coverage" provi1

It’s true, as noted by the majority, that CIGNA denied Sokoloski coverage because it claimed she was not disabled between late October 1997

and January 14, 1998. However, even assuming this is true, it would not

ultimately have denied her long-term benefits absent the change from

CIGNA to MetLife. It would merely have changed her start date. CIGNA

denied Sokoloski benefits because it claimed she was not continuously

disabled for 180 days as calculated from August 25, 1997. For this reason she did not satisfy its benefits waiting period for a disability beginning on that date. At the same time, CIGNA did not dispute that she had

a disability beginning in January 1998. Had she still been covered by the

CIGNA policy at that time, (which she almost certainly was not), she

would have been eligible for benefits for a disability beginning on that

date. 

SOKOLOSKI v. METLIFE INSURANCE COMPANY 5
sion. With respect to the majority, I submit that we are presented with

exceptional circumstances and would remand for the simple factual

determination necessary to resolve Sokoloski’s alternate claim. 

As noted in the last footnote of the majority’s opinion, the MetLife

plan includes a "Continuity of Coverage" provision, which states: 

In order to prevent loss of your coverage because of a transfer of insurance carriers, This Plan will provide coverage for

you as follows: 

1. Failure to Be Actively at Work Due to Injury or Sickness 

This Plan will cover you, if you: 

a. were covered under the prior carrier’s plan at

the time of transfer, and 

b. are not Actively at Work due to Injury or

Sickness; 

provided the required payment toward the cost of

Long Term Disability Benefits is made to us for

you. 

The benefit payable will be that which would have been

paid by the prior carrier had coverage remained in force,

less any benefit for which the prior carrier is liable. 

The plain purpose of this provision is to provide coverage to persons

like Sokoloski. The "Continuity of Coverage" clause anticipates that

people in her position may not be able to qualify for long term benefits under the "Effective Dates" provision because they happen to

have become unable to work during a period when coverage is being

transferred. 

For the most part, it is also plain that Sokoloski qualifies for coverage under the specific terms of the provision. It is not disputed that

6 SOKOLOSKI v. METLIFE INSURANCE COMPANY
she was "covered" under the prior policy at the time of transfer as

required by part "a" of the "Continuity of Coverage" provision.

Indeed, as a former employee with more than 20 years’ service to her

company, it should be evident that she had both earned and paid for

her coverage. There is also no dispute that Sokoloski was not "Actively at Work" due to injury on or after September 1, 1997, the date

the record indicates the policies transferred.2 MetLife itself vigorously

argues this very point. The only open issue in determining whether

Sokoloski should be covered is therefore whether, as seems likely,

BG&E paid premiums on behalf of Sokoloski to MetLife. 

Especially in light of the obviousness of this claim, I believe it is

wrong to deny Sokoloski benefits to which she is probably rightfully

entitled on procedural grounds. Ordinarily, of course, this Court does

not consider issues not previously raised. Id. In addition to considerations of judicial economy, this rule is rooted in the recognition that

it is essential for fair process that each side have the opportunity to

fully argue the merits and introduce relevant evidence. See Hormel v.

Helvering 312 U.S. 552 (1941). However, the matter of what questions may be taken up for the first time on appeal is one left to our

discretion. Singleton v. Wulff 428 U.S. 106, 121 (1976). Consistent

with that discretion, when an error is "plain" and a refusal to address

it would result in a denial of fundamental justice, it should be corrected. United States v. Barge Shamrock, 635 F.2d 1108, 1111 (4th

Cir. 1980). This court has held:

Rules of practice and procedure are devised to promote the

ends of justice, not to defeat them. A rigid and undeviating

judicially declared practice under which courts of review

would invariably and under all circumstances decline to

consider all questions which had not previously been specifically urged would be out of harmony with this policy.

Orderly rules of procedure do not require sacrifice of the

rules of fundamental justice. 

2While there is no direct evidence from CIGNA or BG&E in the

record conclusively demonstrating that September 1, 1997 was the date

that CIGNA ceased insuring employees of BG&E, the fact that the

MetLife policy was purchased to begin on that day is strong indirect evidence to that effect. 

SOKOLOSKI v. METLIFE INSURANCE COMPANY 7
Washington Gas Light v. Virginia Electric & Power Cor. 438 F.2d

248, 250 (4th Cir. 1971) (quoting Hormel, 312 U.S. at 557); see also

Barge Shamrock, 635 F.2d at 1111; Furka v. Great Lakes Dredge &

Dock Co. 755 F.2d 1085, 1089 (4th Cir. 1985). This is precisely what

is at issue here. 

The system has failed Agatha Sokoloski. The "Continuity of Coverage" provision is documented in the record. The issue of whether

it provided coverage to Sokoloski should have been obvious to the

parties. In the first instance, of course, the error must be attributed to

Sokoloski’s counsel who was certainly remiss not to raise the issue

below. At the same time, however, this is not a case where an unsuspecting defendant is surprised by a last minute claim. It is simply not

plausible that MetLife was unaware of Sokoloski’s probable rights

under the "Continuity of Coverage" provision. It was the party most

familiar with its own policy, it had been given notice of a claim arising at the time of transfer from another insurance carrier, and it was

certainly in a good position to determine whether premiums had been

paid to it on Sokoloski’s behalf. Moreover, in both its correspondences with Sokoloski denying benefits and its subsequent position

during litigation, MetLife argued the very set of conditions that

should have suggested Sokoloski was likely covered under the "Continuity of Coverage" clause. Yet, at no time did MetLife notify

Sokoloski of this fact. This smacks of bad faith, and the fact that the

issue was consequently not addressed by the District Court should not

inhibit us from considering it. 

Justice requires us to recognize Sokoloski’s obvious claim and

remand to the District Court to resolve the limited factual issues

remaining to determine Sokoloski’s right to benefits under it.

Sokoloski has put evidence in the record showing that her pay was

being deducted for "flexible benefits" such as MetLife coverage.

MetLife argues that it does not conclusively show that the deductions

were to pay for MetLife premiums. It should be a relatively straightforward evidentiary exercise to determine whether this was in fact the

case. In the case that it is, the District Court should grant Sokoloski’s

claim for coverage and determine the amount and timing of benefits

payable consistent with the other terms of the MetLife policy and the

date of transfer. 

8 SOKOLOSKI v. METLIFE INSURANCE COMPANY