### In the



# United Stat es Court of Appeal s For the Seventh Circuit

No. 11-1112

J A M E S E. K I L L I A N

, Plaintiff-Appellant ,

v.

C O N C E R

T H E A L T H P L A N

, E T A L ., Defen dants-Appellees.

Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the Nor thern Distri ct o f Il l i noi s, Eastern Di v i sio n. No. 1: 07 -cv-04 75 5 — Gary S. Feine rman and Marvin E. Asp en , Judg es.

A R G U E D S E P T E M B E R 29, 2011 D E C I D E D A P R I L 19, 2012 R E A R G U E D E N B A N C S E P T E M B E R 27, 2012 D E C I D E D N O V E M B E R 7, 2013

B e f o r e W OOD , C h i e

f J u d g e , a n d P OS NE R , F L AU M , E A S T ER B R O O K , R I P P L E , M A N I O N

, K A N N E , R O V N E R

, W I L L I A M S

, S Y K E S , T I N D E R , and H A M I L T O N

, Circ uit Judges.

R I P P L E , Cir cui t Jud ge. In Februar y 2006, Susan Kill i an learned that she had lung canc er , w hi ch had spread to her brai n. After physi ci ans at Delnor Communi ty Hospi tal2 No. 11-1112

deter mi ned that they could not oper ate, she sought a sec ond

o p inio n from a physi ci an at Rush Uni v ersi ty Medic al Center (“R us h”) and soon afterw ard w as admi tte d for emerge ncy brai n surgery

. Although the surgery suc cess fully removed the

mo st seri ous tumor

, her canc er tr eatment w as ulti mat e l y

uns ucc essf

ul, and s he di ed a few m onths later

. At the tim e of her di agnosi s, Mr s. Kill i an w as an employ ee of Ro y a l Ma n a ge m e n t C or p or a ti on ( “ Ro y al Management”) an d partici pated i n i ts gr oup health i nsu rance, whi ch w as prov i ded by Concert Health Plan Insurance Company (“Concert”). Concert pai d fo r part of Mr s. Kill i an’s canc er tr eatment, but deni ed cov erag e, or pai d on l y a small percentage , of services receiv ed at Rush. Mr

. Kill i an, the admi ni strat or of her estate, brought thi s acti on again st Concert , C o ncer t Health Plan, 1 Roy al Management and Roy al Management Cor porat i on Health Insurance Plan (the “Roy al Plan”) seeki ng p ayment of benefi ts again st the Roy al Plan and Concert , relief for breach of fiduc i ary duty again st Roy al Management and Concert , a nd
statuto ry penalti es agai nst Roy al Management. 2

The di stric t court gr anted sum mary judgme nt fo r the defendants on the deni al of benefi ts and breach of fi duci ary

Co ncert Health Plan was di smissed as a party i n earli er pro ceed i ngs. See 1
R.232 . M r. Ki l l i an does no t appeal that deci sio n.

The d i stric t co urt’s jur i sdi cti on was predi cated o n 29 U. S.C. § 11 32 (e)

. 2

I n S e ptemb er 20 12 , Mr. Kil l i an moved to sub stitute himsel f, i n his i ndivid ual capacity, as pl aintif f, and we granted his moti on. App. R.48. He sub sequently has requested sub stituti on again, thi s ti me t o return hi mself

as a dmi nistrator o f M rs. Ki l l i an’ s estate. We addr ess this r equest infra

.No. 11-1112 3 duty clai ms and aw arded statu tor y penalti es again st Roy al Management. A panel of thi s court affi rmed the deci si on of the di stric t court on the fi rst tw o clai ms, but remande d fo r the 3 d ist ric t court to corr ect the calc ulati on of statuto ry penalti e s. Kill ian v

. Concert Health Plan ( Kill ian I ), 680 F .3d 749, 764–65 (7th Ci r

. 2012). After rehear i ng by the en banc court, w e adopt the

4 panel’s reasonin g and conclu si on re l ated to the deni al of benefi ts and statuto ry penalti es i ssu es. On the breach o f fi duci ary duty clai m, how ev er , w e rev erse the judgment of the di stric t court and remand for further proceedings.

I
BACKGRO UND
Concert began p ro vi d i n g i n s u ra n c e to Ro y al Management’ s employ ees i n July 2005. The agr eement betw een Roy al Management and Concert p ro vided that Roy al Management

w ould be the plan admi ni strat or and that Concert w ould b e the “admi ni strat or for clai ms deter mi nati ons” and the “ERIS A [Empl oy ee Retirement Income Security Act ] clai ms rev i ew fi duci ary ” wi th “full and exclusi v e di screti onary authority to: 1) i nterpr et P olic y or Group Plan prov i si ons; 2) make deci si ons

On the deni al of b enefi ts cl aim, the panel di rected the partie s to sub mit a 3 stipul atio n as to whether the pro v i ders at Rush w ere withi n Mrs. Kil l i an’ s network. Killian v. Concert Health Plan ( Killian I ), 68 0 F.3d 74 9, 76 4 (7 th Ci r. 20 12 ).

Our j uri sdi cti on i s pred i cated o n 28 U. S.C. § 12 91

. 44 No. 11-1112

reg ar d ing eli gib i li ty for cov erag e and benefi ts; and 3) resolv e factual qu esti ons relating to cov erag e and benefi ts.” 5

Whi le employ ed wi th Roy al Management, Mr s. Kill i an enrolled i n the Roy al Plan and se l e ct ed cov erag e under the “SO 35 Open Acces s” option. The Master Group P olic y a nd accompan yin g Cert i fi cate of Insurance appli cable to her SO 35 plan described the ter ms, ex cl us ions, condi tions and benefi ts

av ai lable under the Roy al Plan. P art i ci pants w ere cauti oned to seek s erv i ces f ro m netw or k pro viders w henev er po ssi ble and told that “[t]o confi rm that Y o ur

... prov i der i s a CURRENT partici pant

... Y

ou must call the numb er li sted on the back of Y our medi cal i denti fi cati on card.” The Maste r Group P olic y 6 did no t speci fy whi ch of sev eral numb ers on the back of the card should be called, and a few pa g e s later i t i nstructed partici pants to o bt a i n prov i der partici pation i nformation by calli ng an uns peci fi ed “toll free telephone numb er on y our i denti fi cati on card.” P a rt i c i p a n ts also w ere di rected to “call the 7 numb er” on their i dentific a tion cards to v erify i nfertili ty benefi ts, or appeal a deci si on denyi ng be ne fit s. They w ere 8 i nstructed to follow the procedures described in t he

R.25 9- 3 at 7 7. 5

Id

. at 15 (e mpha sis adde d). 6

Id

. at 19 (e mpha sis adde d). 7

Id

. at 42 , 4 9, 50

. 8No. 11-1112 5

“Utili zation Management secti on” when receivi ng emerge ncy

care. 9

The front of Mr s. Kill i an’s i nsu rance card li sted t oll-free numb ers under four di fferent headi ngs. The second and most prominen tly li sted numb er w as for “Customer Ser vic e,” whi ch

w as the sa me t oll-free numb er for “Utili zation rev i ew .” The back of her c ard li sted toll-free numb ers under three di fferent he a d ing s, bu t used the same toll-free nu mb e r fo r “UTILIZA

TION REVIEW” and medi cal clai ms. Both si des of 1 0 thi s card are appended to t hi s opi ni on.
In late Februar y 2006, M r s. Kill i an sought tr eatment from her prim ary care physi ci an, Dr

. Brad shaw , for a sev ere cold and persi stent headaches. A CT scan rev ealed the presenc e of three bra in t um or s, and she w as diagnosed wi th lung cancer , whi ch had metastasi zed to her brai n. Mr s. Kill i an then w ent to Delnor Communi ty Hospi tal; she stay ed for fi v e days, but her physi ci ans conclu ded that they could not oper ate on the
tumors. Seek i ng a second opin i on, the Kill i ans sch eduled an appoi ntment wi th Dr

. Phi li p Bonomi , a physi ci an at Rush who had tr eated Mr s. Kill i an’s daughter before she di ed o f canc er i n 2001. The Kill i ans met wi th Dr

. Bonomi and Dr

. Loui s Barnes, a neurosurgeo n, on April 7, 2006. Dr

. Barnes rev i ew ed Mr s. Kill i an’s me d ical recor ds, i nclu di ng the CT scan , and deter mi ned that Mr s. Kill i an w ould be dead i n fi v e days unles s the larg est tumor w as remov ed i mmedi ately

.

Id

. at 21

. 9

R.82 -7 at 2– 3. 1 06 No. 11-1112

Th e Kill i ans di d not contact Concert before meetin g wi th Dr . Bonomi becau se thei r plan to see Dr . Bonomi for a second opin i on di d not dep e nd on whether he w as i n Mr s. Kill i an’s
netw or k. How ev er

, when they lear ned that Mr s. Kill i an had only a few days to liv e unless the largest tum or w as remov ed and that physi ci ans a t Rush could perfor m the necess ary surgery , Mr

. Kill i an called Concert abo ut the dev elopin g si tuation. He fi rst called the “prov i der par tic i pation” nu mber li sted on the front of Mr s. Kill i an’s i nsu rance card. Mr

. Kill i an i nformed the Concert repr esentativ e that he and Mr s. Kill i an

w ere at St

. Luke’s Hospi tal fo r a se cond opin i on, that the 1 1 physi ci ans had deter mi ned that the tumor had to be removed and that the physi ci ans w anted Mr s. Kill i an to be admi tte d for brai n surgery

. The repr esent a tiv e searched her database and could not fi nd any i nformation on “St

. Luke’s,” bu t told Mr

. Kill i an to “go ahead wi th whatev er had to be done.” She 1 2 also told him to call back later

. 1 3

Mr . Kill i an called back later the s ame day , April 7, but thi s tim e he called th e nu mber li sted under the prominen t “Customer Ser vic e” headi ng on the front of Mr s. Kill i an’s i nsu rance card, whi ch is the same num ber under the headi ng

Rush Uni v ersi ty Med i cal C e nte r adopted i ts current nam e i n 20 03

. See 1 1
H i s t o r y , R u s h U n i v e r s i t y M e d i c a l C e n t e r C a r e e r s , http://www.j obsa trush.com/ histo ry.htm (l ast v i site d Mar. 18 , 20 13 ). Bef or e tha t, Rush ’s nam e i ncorp or ated the nam e of a pred ecesso r entity, St. Luke’s. Id

.

R.87 at 2. 1 2

R.25 3 at 7 2. 1 3No. 11-1112 7

“Utili zation rev i ew” on the front and back of the card and i s also li sted as the numb er for medi cal claims. The repr esentativ e who too k the second call seemed to be aw are of Mr

. Kill i an’s e arlier call and confus i on about the name of the hospi tal becau se when he menti oned Rush she sai d, pe r ha p s i n jest, “Oh, y ou mean St

. L uk e’s.” He could hear her laugh 1 4 and tell a colleague, “It’ s the guy from St

. Luke’s.” When Mr

. 1 5 Kill i an told the repr esentativ e, “I’m tr yin g to get confi rmation that w e are g oin g to be—my wi fe i s going to be admi tte d to Rush,” the re p r e se nt ativ e sai d, “Okay .” She di d not tell Mr

. 1 6 Kill i an whether services at Rush w ere in or out of netw or k or whether ther e w ould be any li mi ts to coverage. 1 7

Mr s. Kill i an underw ent surgery a t Rush tw o days later , April 9, and w as released on April 12, 2006. The recor d i s si lent

as to whether the Kill i ans w ould hav e gone to a di fferent hospi tal or sought emerge ncy admi ssi on at Rush had Concert 1 8
repr esentativ es told M r

. Kill i an that Rush w as not i n Mr s. Kill i an’s netw or k. After the surgery , she receiv ed some outpatient services from Dr

. Bonomi , and , i n June 2006, she

Id

. at 73

. 1 4

R.87 at 2. 1 5

R.25 3 at 7 3. 1 6

The reco rd do es not contain c al l l ogs or other objecti v e pro of of which 1 7 numb ers M r. Kil l i an call ed; however, Co ncert nev er has di sputed these facts.

Ser v i ces rece i v ed on an emergency b asis are pro cessed at the i n-network 1 8
l evel. See R.25 1 at 9 1.8 No. 11-1112

w as admi tte d to Rush on an emerge ncy bas i s for ni ne days to b e t r e a t e d f o r p n e u m o n i a

. M r s. K ill ia n a t t e mp t e d chemotherapy but could not toler ate i t, and she di ed i n August 2006.

Duri ng the months betw een Mr s. Kill i an’s surgery and death, Mr

. Kill ian receiv ed notic es from Concert statin g that Concert w ould not cov er services at Rush becau se the hospi tal

w as not i n Mr s. Kill i an’s netw or k. In response to a lette r from Mr

. Kill i an di sputi ng the deni al and requestin g i mmedi ate

rev i ew , Concert reiterat ed that the clai ms w ere out of netw or k and that the Kill i ans w ere responsi ble for th e ma x i mum allow able fee. When Mr

. Kill i an appealed, Con ce r t agr eed to consi der Mr s. Kil l i an’s tr eatment for pneumoni a as an

eme r g ency and to process the clai m for that tr eatment at the i n-netw or k lev el. The remain i ng clai ms tot al approx i ma t ely $80,000.

Mr

. Kill i an fi led thi s acti on i n hi s capac i ty as admi ni strat or of Mr s. Kill i an’s estate, and di scov ery ensued. The p ro ceedi ngs before t he di stric t c ourt i nclu ded multi ple motions to dism i ss

a nd for sum mary judgment, and Mr

. Kill i an amended his complai nt twi ce. Fin ally , the di stric t court gr anted sum mary judgment i n favo r of the defendants on the deni al of benefi ts

a nd breach of fi duci ary duty clai ms and gr anted statuto r y penalti es again st R o y al Management for fai lure to prov i de Mr s. Ki lli an wi th a summ ary plan desc ripti on.
On the deni al of benefi ts claim , Mr

. Kill i an arg ued that Concert ’s deci si on to deny benef it s should not be sus tain ed becau se Concert di d not comply wi th ERIS A’s notifi cati on

r equi rements and becau se there w as no evidenc e supp or tin gNo. 11-1112 9

Concert ’s deter mi nati on that Rush and Dr

. Bonomi w ere not i n Mr s. Kill i an’s netw or k. Section 1133(1) of Ti tle 29 requires that when a benefi ts clai m i s deni ed, the plan mus t giv e notic e to the benefi ci ary by “setting fo rt h the speci fi c reasons for suc h deni al, wri tte n i n a manner calc ulated to be understood by the partici pant.” Failu re t o comply subs tantially wi th § 1133 may be gr ounds for rev ersi ng an admi ni strat or ’s deci si on. See Love

v

. Nat’l City C or p

. W

e lfare Benefi ts Plan , 574 F .3d 392, 396 (7th Ci r . 2009). The di stric t court deter mi ned t hat the not i fi cati ons sent by Concert di d not comply wi th all of the te chni cal requirements set fort h in 29 C.F .R. § 2560.503-1(j). How ev er , 1 9 the court held that, becau se Concert ’s lette r s sub stanti ally compli ed wi th ERIS A’s notifi cati on requirements, the defi ci enci es did not w arr ant a fi ndi ng that Concert ’s d e cisi on

In particul ar, the di stric t cour t deter mined tha t Co ncert’s noti fi catio n 1 9
l etters
fail ed to i denti fy, b y nam e, any “ sp e c i fi c rul e, guid el i ne, pro toco l , or other simi l ar cri teri on” used i n reaching the deci sio n. 29 C.F.R. § 25 60 .50 3- 1( j) (5 ). The l etters negle ct to i nfor m Kil l i an tha t a copy of any rel eva nt do cument, rul e

or other i nfor mat i on wil l be p r o v i ded to him at no cost, upon request. Id

. The l ette r s al so say nothi ng ab out [Co ncert’s] i nternal appeals pro cedur es, av ail ab l e di spute

reso l utio n opti ons, or Kil l i an’ s ri ght to sue under 29 U.S .C. § 11 32 (a). ( Id

. ) Indeed, as Kil l i an ha s emphas i zed throughout these pro c eedi ngs, these noti fi catio ns l etters

are quite slo ppy. For exa mple , they refe r to Susan’s network as the PHCS (Open Acce ss) Ne t work, even though that

i s not the netwo rk mentio ned i n the COI.

Killian v. Concert Health Plan Ins. Co. , No. 07 -cv-04 75 5, 20 10 WL 26 81 10 7, at *8 (N .D. Il l . J uly 6, 20 10 ).10 No. 11-1112

w as arbi tr ary and capri ci ous. In addi tion, i t held that there w as

no need to remand to Concert becau se Mr

. Kill i an di d not allege that the prov i ders i n questi on w ere wi thi n Mr s. Kill i an’s
netw or k. 2 0

On the breach of fi duci a ry duty clai m, Mr

. Kill i an arg ued that Concert and Roy al Management fai led to prov i de Mr s. Kill i an wi th an adequate sum mary plan descri ption. The di stric t court gr anted sum mary judgment for t he defendants becau se Mr

. Kill i an had fai led to show bad fai th, pur poseful concealm e nt or detr i mental relianc e. Mr

. Kill i an mov ed for 2 1 reconsi derat i on arg ui ng that the di stric t court had ov erlo oke d

our deci si on i n K e n s e th v

. Dean Health Plan, Inc. , 610 F .3d 452 (7th Ci r

. 2010), and had fai led to address the tw o t e l ephone calls that he made t o C oncert on the day of the appoi ntment wi th Dr

. Bonomi

. Mr

. Kill i an arg ued that Concert breached i ts fi duci ary duty by fai li ng to i nf o r m hi m that Rush w as out of
netw or k and that cov erag e of any services receiv ed at Rush

w o ul d be li mi ted. The di stric t court di smi ssed thi s arg ument

on the gr ounds th a t C o ncer t di d not giv e Mr

. Kill i an any i nformation about whether Rush w as i n netw or k and becau se the Kill i ans had not relied on any statements made by Concert

I d

. at *9 –1 0. The di stric t cour t di d not i nterpret Mr. Kil l i an’ s b ri efs as 2 0 arguing tha t Co ncert erre d i n deter mini ng tha t Rush and Dr. Bo nomi were out of network. Mr. Kil l i an di d mak e this argumen t. See R.86 at 12 ; R.263 at 8– 9; R.290 at 8– 9. The panel reso l v ed this pote ntial pro b l em b y requir i ng the partie s to sub mit a stipul atio n as to whether Rush , Dr. Bo no mi and Dr. Barnes were out of network, Killian I , 68 0 F.3d at 7 6 4 , an d we agree with tha t di sposi tio n, see infra p. 26

.

Killian , 2 01 0 WL 26 81 10 7, at *11. 2 1No. 11-1112 11

or Roy al Management; i t addi tionally noted that Mr

. Killi an should hav e rais ed thi s arg ument i n hi s opposi tion to

sum mary j udgment. 2 2

A new di stric t judge t o o k o v er the case after sum mary judgment on the deni al of benefi ts and breach of fi duci ary duty clai ms. That jud g e addressed t he separate clai m for statuto ry penalti es for fai lure to p ro vide plan documents and or dered Roy al Management t o pay M r . Kill i an $5,880. 2 3

After a fi nal judgment w as enter ed i n th e di stric t court, Mr

. K i lli an tim ely appealed. A panel of thi s court affi rmed

sum mary judgement for t he Roy al Plan and Concert on the deni al of be ne fi ts clai m, but required the parties to sub mi t a

Killian v. Concert Health Plan Ins. Co. , No. 07 -cv-04 75 5, 20 10 WL 30 00 20 5, 2 2

at *2 (N.D. Il l

. Jul y 28 , 20 10 ). On appeal, Royal Manag ement and Co ncert di d not argue tha t Mr. Kil l i an waived this argumen t, thus wa i vi ng any waiver. Ki l l i a n I

, 68 0 F.3d at 7 57 ; Wes tefer v

. Snyder , 42 2 F.3d 57 0, 58 4 n.20 (7 th Ci r. 2 0 0 5 ). So me of our di ssenting col l eagues, i n contradi stincti on to their positi on in th e pa nel opi nio n, Killian I , 68 0 F.3d at 75 7, now maintain tha t Mr. Kil l i an waived his fi duci ary duty argumen t b y not raisi ng i t b efo re the di stric t cour t. As the panel noted , “Co ncert di d not argue tha t James had waived the argumen t.” Id

. Acco rdi ngly, any waiver was i n turn waived b y the de f e nd ant s. Wes tefer , 42 2 F.3d at 58 4 n.20

. Nor can we accept the pro posi tio n tha t Mr . Kil l i an’ s b ri ef in this court w as so abb reviated o n the sub jec t as to hav e f ail ed to ale rt them to this c ontenti on.

Killian v. Concert Health Plan , No. 07 -cv-04 75 5, 20 10 WL 53 16 04 1, at *2–3 2 3 (N.D. Il l

. Dec. 17 , 20 10 ). Secti on 10 24 (b)(4) of Ti tle 29 requir es an admini strator, upon wri tten r e quest, to furni sh a b enefi ci ary with certai n pl an do cuments

. A b enefi ci ary may seek statu tor y penalti es aga i nst an admini strator wh o fail s to pro v i de the requested documents within th i rty days. 29 U. S.C. § 11 32 (c) (1 ).12 No. 11-1112

sti pulati on as to whether Rush , Dr

. Bonomi and Dr

. Barnes

w ere i n Mr s. Kill i an’s netw or k. The panel also affi rmed

sum mary ju d gm e n t for Roy al Management and Concert on the fi duci ary duty clai m. On the sta t ut o r y damages clai m, the p a ne l rev ersed and r emanded because the di stric t court used the wrong dates in calc ulati ng the penalty and fai led to address one of Mr . Kill i an’s arguments.

II
DISCUSSION

A s noted earlier

, w e affi rm the panel’s deci si on on t he deni al of benefi ts and statuto ry penalti es clai ms; w e there fore li mi t our di scu ssi on here to the one clai m upon whi ch w e chart

a course di fferent from that set out i n the panel opin i on: the breach of fi duci ary duti es. Mr

. K i lli an sub mi ts that Roy al Management and Con ce r t breached their fi duci ary duti es i n tw o w ays: fir st , by fai li ng to prov i de Mr s. Kill i an wi th a

sum mary plan descri ption and, second, by fai li ng to i nform hi m t hat Mr s. Ki lli an’s prov i ders w ere o ut of netw or k duri ng telephone conv ersations on Apri l 7, 2006.

A benefi ci ary i s entitled to relief for a breach of fi duci ar y duty i f he proves “(1) that the defendant i s a plan fi duci ary ; (2) that the defendant breached i ts fi duci ary duty; and (3) that the br each resulted i n harm to the plai nti ff.” Kens eth , 610 F .3d at 464. It i s not disp ut e d here that Roy al Management and C o ncer t are both fi duci aries under ERIS A. Accordi ngly , wi t h respect to each of Mr

. Kill i an’s theor i es on thi s clai m, the i ssu es before us are only those of breach and harm.No. 11-1112 13

O n the fi rst theor y

, relat ed to the fai lure to prov i de a

sum mary plan descri ption, the panel deter mi ned th at Roy al Managem e nt and Concert breached their fi duci ary duty

. It

nev ert heless affi rmed sum mary judgment i n fav or of the defendants becau se Mr

. Kill i an could not show that the lack of

a sum mary plan descri ption caus ed hi s harm. W e agr ee wi th thi s result becau se Mr

. Kill i an knew that he could deter mi ne a p ro vi d e r’s netw or k status by calli ng a numb er on Mr s. Kill i an ’s i nsu rance card, and w e a dopt the panel’s deci si on on thi s matter

. A rev i ew of Mr

. Kill i an’s second t he or y of breach of fi duci ary duty i s more di ffi cult to resolv e, and i t i s wi th respect to thi s speci fi c theor y that w e depart from the conclu si ons of the panel deci si on.
W e p a us e at thi s poin t to set fort h, for the conv eni ence o f the reader

, the path of our disc uss i on. First, w e exami ne whether ther e i s su ffi ci ent ev i dence of a contr ov ersy betw een the parties to exer ci se jurisdi cti on ov er thi s clai m. W e conclu de that, although the full nature and ext ent of the harm i s a merits questi on, i t i s clear that, as thi s case comes to us today , there i s

a li v e di spute betw een the parties about the merits of the clai m that j usti fi es the exer ci se of our j uri sdi cti on. 2 4

Havin g resolv ed thi s threshold i ssu e, w e shall then turn to the merits. On thi s poin t , w e a g r ee wi th Mr

. Kill i an that, becau se the plan documents p ro vided to Mr s. Kill i an w ere

Our reasoni ng with respect to the justi ci ab i l i ty of the di spute d cl aim 2 4 appli es as wel l to the other cl aims deci ded b y the panel t hat are not contro v erted i n this en ban c pro ceed i ng.14 No. 11-1112

i ncomplete i n themselv es, w e mus t ev aluate i n some depth whether that defi ci ency w as cured i n the t e l e phone calls Mr

. Kill i an made to Concert on April 7, 2006. For th e r e a so ns set fort h i n more detai l below , w e conclu de that the sum mary j ud g me nt recor d does not permi t us to resolv e thi s i ssu e of breach i n fav or of the defendants. Assu mi ng that the questi on of breach i s resolv ed i n fav or of Mr

. Kill i an the sum mary judgment recor d si mi larly rais es a genui ne i ssu e of tr i able fact on the question of harm.

W e now turn to a plenary di scu ssi on of the i ssu es w e hav e just outlined.

A.

In Sept ember 2012, followi ng the panel deci si on i n th i s case, Mr

. Kill i an notifi ed the court that Mr s. Kill i an’s estate had been closed i n A ugust 2011. At the tim e, the only asset held by the
estate w as i ts clai m again st t he defendants, whi ch w as di strib uted to Mr

. Kill i an. Mr

. Kill i an mov ed to sub sti t ut e hi mself as plai nti ff i n hi s i ndi vidu al capac i ty , rat her than as admi ni strat or of Mr s. Ki lli an’s estate. W e gr anted hi s mot i on. W e w ere concerned, ho w ev er , about whether thi s change affec ted our jurisdi cti on under the case or contro v ersy requirement of Art i cle III of the Constit ut io n of the Uni ted St ates. Thi s concern obli gate d us to consi der the matter further

. See North Car olina v

. Rice , 404 U.S. 244, 245–46 (1971) (per curi am). Accordi ngly

, followi ng rear gument en banc, w e

or dered addit io nal bri efi ng to assi st us i n deter mi ni ng whether , i n li ght of the closi ng of the estate, “M r

. K illian
ret ai ns any i ntere st i n obtaini ng relief and whether the reliefNo. 11-1112 15 sought by Mr

. Kill i an wi ll mak e a di fference to hi s legal i ntere sts.” The parties responded. In hi s sub mi ssio n, Mr

. Kill ia n notifi ed the court that he had reo pened Mr s. Kill i an’s
estate and again sought to pursue the clai m on behalf of the
estate. Havin g rev i ew ed the sub mi ssi ons, w e now conc l ud e that there i s a li v e contro v ersy bet w e en the parties suc h that our j uri sdi cti on ov er t he matter i s not i n questi on. Under Art i cle I II, t he fe deral courts “may only adjudi cate actual, ongo i ng contro v ersi es.” Honig v

. Doe , 484 U.S. 305, 317 (1988). When a case becomes moot , thi s co nsti tutional requirement i s lacki ng. United Stat es v

. Segal , 432 F .3d 767, 773 (7th Ci r

. 2005) (notin g t hat a case i s moot i f the contro v ersy betw een the parties has been r esol ved ). The Supreme Court recently has reiterat ed, si mply and di rectly , the governi ng prin ci ple i n any moot ness i nqui ry : There i s thus no ca se or contro v ersy , and a sui t becomes moot , wh e n the i ssu es presented are no longer “li v e” or the parties lack a legally cogni zable i ntere st i n the outcome. But a case becomes moot only when it i s impossible for a court to grant any effec tual r elief whatever to the pr evailing party

. Chafin v . Chafin , 133 S. Ct. 1017, 1023 (2013) ( emphas i s added) (ci tations omi tte d) (i nternal quotat i on marks omi tte d). That i s, although “federal courts are wi thout pow er to deci de q ue st i ons that cannot affec t the rights of li tigants i n the case before them,” R i c e , 404 U.S. at 246, “[a]s long as the parties hav e a concrete i ntere st, how ev er small , i n the outcome of the li tigati on, the case i s not moot ,” Knox v

. Serv

. Emps. Int’l Union, Local 1000 , 1 3 2 S. Ct. 2277, 2287 (2012) (i nternal quotat i on16 No. 11-1112

marks omi tte d )

. C on s e qu e ntly , “[t]he burden of demonstrating
moot ness i s a heavy one,” Los Angeles Cnty

. v

. Davis , 440 U

. S. 625, 631 (1979) (i nternal quotat i on mar ks omi tte d), borne by the party seeki ng to hav e the case declared moot , see , e.g. , Fi r e f ighters Local Union No. 1784 v

. Stott s , 467 U.S. 561, 569–70 (1984).

N o t a bl y , the Court also has couns eled that w e mus t be careful not to “‘confus e[] moot ness wi th whether [the plai nti ff ] ha s establi shed a right to recov er ..., a questi on whi ch it is i nappropr i ate to tr eat at thi s stage of the li tigati on.’” Chafin, 133 S. Ct. at 1024 (sec ond and thi rd alter ations i n or i gin al) (quoti ng Powell v

. McCormack

, 3 95 U.S. 486, 500 (1969))

. In the present
case, to suc ceed on the merits of the fi duci ary duty clai m (the clai m that w as i n the possess i on of Mr s. Kill i an’s estate before i t w as closed), M r

. K illian mus t present evidenc e from whi ch

a factfi nder can conclu de that the estate su ffered a harm from

a breach on the part of the defendants. But that i s a burden that he mus t carry on th e me r it s. At thi s stage, by contrast, as w e consi der our basi c sub

ject matter jurisdi cti on, Mr

. Kill i an mus t assert suc h a cogni zable i nj ur y a nd demonstrate that i t i s possi ble for t he co urt, w ere i t to agr ee wi th Mr

. Kill i an’s arg uments on li abi li ty

, “to ‘fashi on some form of meaning ful relief,’” F l y n n v

. Sandahl , 58 F .3d 283, 287 (7th Ci r

. 1995) (emphas i s in or i gin al) (quoting Chur ch of S cien tolo g y v

. United States , 506 U.S. 9, 12 (1992))

. As w e noted i n Dixon v

. A TI Ladish LLC , 667 F .3d 891, 8 9 4 (7 t h Ci r

. 2012), “a goo d defense to li abi li ty i s a reason why defendants prev ai l on the merits rat her than a reason why the liti gation should b e di smi ssed w i thout prej udi ce—wh i ch i s the consequen ce of moot ness .” See also Chafin , 133 S. Ct. at 1025 (notin g that unc ert ai nty as to whetherNo. 11-1112 17

an or der will be follow ed or enforced does not render a case moot ); Segal , 432 F .3d at 773 (no t ing that the advis abi li ty of a particu lar remedy “i s not relev ant to the moot ness inqui ry ”);

c f

. H ar zewski v

. Guidant Corp. , 489 F .3d 799, 804 (7th Ci r

. 200 7 ) (rev ersi ng a di stric t court’s di smi ssal for lack of standi ng becau se “the questi on whether an ER I S A p l ai nti ff i s a ‘part i ci pant’ enti tled to recov er benef i ts under the Ac t s hould be tr eated as a questi on of statuto ry i nterpr etat i on fund amental to the merits of the sui t rat her than as a questi on of the plai nti ff’s right to bri ng the sui t”). In short, the moot ness i nqui ry turns on “whethe r t he r elief sought w ould, i f gr anted, make a di fference to the legal i ntere sts of the parties (as di sti nct from their psyches , whi ch mi ght remain deeply engaged wi th the merits of the li tigati on).” Air Lin e Pilots Ass’ n, Int’l v

. UAL Corp. , 897 F .2d 1394, 1396 (7th Ci r . 1990) (emp hasi s added)

. The closi ng and reo peni ng of the estate i s an odd ci rcums tance, but one that unnec essari l y , in our view

, compli cates the jurisdi cti onal i nqui ry

. Regar dless of whether the estate i s opened or closed, there i s no questio n t ha t the parties hav e a current, li ve di spute wi th both i mmedi ate and potent i a l f

u tu re c on s e qu e n ces. Mr s. Kill i an i ncu rr ed si gni fi cant medi cal bi lls precedi ng he r death. See generally R.77-4, 77-5 (medi cal bi lls and explanations of benefi ts). The recor d reflects that she (or Mr

. Kill i an after her death) pai d sever al of those bi lls. See, e.g. , R.77-5 at 18 ($65.77 pai d to “Rush Uni v e r sity Medic al Center ” for services dated 04/08/2006); id. at 19 ($11.87 pai d to “Rush Uni v ersi ty Medic al Center ” for serv ice s dated 04/07/2006); id. at 4 0 ($10 pai d to “Rush Uni v ersi ty Medic al Center ” for services dated 0 4 /07/2006). Those debts i ncu rr ed—and bi lls actually pai d—w ould not necess arily hav e18 No. 11-1112

been the same had t he d e fe ndants cov ered her care to the

e xt e n t required had the prov i ders been i n-netw or k. Indeed , th e

recor d su g g ests that co-pay , coi nsu rance, and annual deducti ble amounts di ffer dependi ng on whethe r a service i s

o bt a ined from an in-n etw or k or out-of-netw or k prov i der

. See R.77-3 at 65–69 (setti ng fo r t h the appli cable costs under the SO 35 Open Acces s plan, the plan i n whi ch Mr s. Kill i an w as enrolled). The estate, there fore, already has suffe r e d thi s concrete and redr essab le i njury , and thi s fact alone i s suf fi ci ent to secure our jurisdi cti on. Although these amounts i n themselve s are suf fi ci ent to prev ent us from declari ng the case moot , i t w ould be wrong to sugg est that the only consequen ce of resolv i ng thi s di spute

w ould be to settle debts on these amounts already pai d. Sinc e Mr s. Kill i an’s death, the di spute i n thi s case always has been one betw een Mr

. K ill i an and the defendants ov er hi s wi fe’s

cov erag e and their fami ly’s resulti ng li abi li ty on thi rd-part y medi cal debts. Ini tiall y , he pursued t his di spute thro ugh the

v ehi cle of a probat e estate, wi th the entire corpus of the estate bei ng the clai ms again st th e defendants. Ti ed up i n the same di spute, how e ver

, are the debts that Mr s. Kill i an di ed owi ng, whi ch w e understand could hav e been collected by her medi cal credi tor s ei ther thro ugh claims a gain st her estate or di rectly again st M r

. Kill i an under the Illi noi s F ami ly Expense Act, 750 ILCS 65/15. For practic al purposes, as far as Mr

. Kill i an

w as concerned, the v ehi cle t he credi t o r s pursued w as o f little consequen ce. In the end, the responsi bi li ty for payment rested wi th hi m, ei ther as admi ni strat or of the estate or becau se of hi s di rect and personal li abi li ty

. Un surpr i si ngly

, the credi tor s appear to h av e pursued the path of least resi stance and bi lledNo. 11-1112 19

Mr

. Kill i an di rectly

. Also uns urpris i ngly

, the recor d does not 2 5 reflect that any of the medi cal prov i ders hav e ev er i nstit ut ed judi ci al proceedings to collect on the debts as opposed to

w or kin g wi th Mr

. Kill i an tow a r d p ayment, perhaps at the conclu si on of thi s li tigati on. Gi v en these ci rcums ta nces , Mr

. Kill i an’s i ni tial deci si on to cl ose the estate i s understandable. It w as Mrs. Kill ian ’s clai m, but he i nheri ted i t, and, i n any ev ent, the consequen ce of the resolut io n o f the di sp ut e, whatev er i t may be, falls to hi m alone. The estate i s and has alw ays been a co nstruct to resolv e thi s di spute. W e fi nd i t equally understandable that, once i t appeared from the court’s own request for supp lemental fi li ngs that the closi ng of the estate might mat t e r for our purposes, Mr

. Kill i an

accomm odated that p o ss ibi li ty by reo peni ng the estate. W he ther , as a matter of state law , that v ehi cle i s a viab le or preferable w ay of pro ceedi ng i s of secondary i mport ance to

our present i nqui ry

. By no accoun t i s the present di spute

r e so l ved, and by no accoun t has ther e been any fund amenta l shi ft i n the relat i onshi p of the part i es to t he di spute. 2 6

Judge Manio n’s di ssent (herei nafter di ssent) contends tha t this statem ent 2 5
i s uns u p p or ted b y the reco rd, which i nclud es cop i es of b i l l s sub mitted to Mrs. Kil l i an. However, Mr. Kil l i an stated i n his affi dav i t tha t the pro v i ders “co ntinue to b i l l me,” R.87 at 2, an d c o unsel i nfor med us b oth at or al argumen t and i n respo nse to our request fo r suppl emental fi l i ngs tha t Rush pro v i ders hav e conti nued to b e i n contact with M r. Kil l i an through his attorneys r e g ardi ng the amounts stil l owed fo r Mrs. Kil l i an’ s care. Rega rdl ess of the nam e atop the b i l l s rece i ve d , i t i s apparent tha t the pro v i ders hav e so ught rei mb ursement fro m the Kil l i ans di rectl y.

The di ssent ass erts tha t any harm tha t has b een suffer ed or might b e 2 6 (co ntinued. ..)20 No. 11-1112

The foreg oin g di scu ssi on rev eals the di rect fin anci al i ntere sts at stake i n the amounts a l r e a d y pai d, and the suf fi ci ently real possi

bi li ty that the addi tional debts may come Mr

. Kill i an’s w ay

. In li ght o f t he r e o peni ng of the estate, the contention i n Judge Mani on’s di ssen t (herei nafter di ssen t) that there i s no possi

bi li ty of recov ery of the medi cal bi lls from the estate, and there fore no apparent ha r m t o t he estate, i s not d e mo nstrably corr ect. Whether that contention w as corr e ct whi le the est a t e w as closed i s a somewhat compli cated questi on. In Illi noi s, t he fact that an estate i s closed may , but does not necess arily

, prec l ude credi tor s from bri ngi ng clai ms again st i t. In Schl oegl v

. Nardi ( In r e Estat e of Perrine ), 234 N.E.2d 558, 561 (Ill. App. Ct. 1968), the Illi noi s Court of Appeals held that a n estate that had been duly admi ni stered and closed

( ...c onti nued) 2 6 suffer ed b y Mr. Kil l i an fro m an unfav or ab l e reso l utio n of this di spute arises
not fro m his statu s rel ative to the estate, bu t by o p e ratio n of Il l i noi s l aw, given his marriage to Mrs. Kil l i an at the time she i ncurred medi cal b i l l s. It attempts to i l l ustrate the poi nt b y i mag i ning tha t the Kil l i ans had di v or ced fo l l owi ng the medi cal care i n questio n, such tha t Mr. Kil l i an might conti nue to b e l i ab l e (and conti nue to b enefi t fro m a fav or ab l e reso l utio n of the present di spute) despi te not b ei ng the b enefi ci ary of he r e state. But the premi se of the di ssent’s exerci se undersco res the central i ssue. The Kil l i ans di d not di v or ce , and Mr. Kil l i an stan ds b efo re the cour t i n his pro per perso n, b oth husb and and admini strator/bene f i c i ary, ask i ng the cour t to

reso l v e the sam e i ssue he has always a sked i t to reso l v e, and f or the sam e

re as o n: He has faced and c onti nues to face uncertain l i ab i l i tie s rel ating to Mrs. Kil l i an’ s care at Rush

. Acco rdi ngly, we deem Mr. Kil l i an’ s most rece nt moti on to sub stitute to b e i nstead a moti on to add hi ms e l f i n hi s capacity as admi nistrator of the
estate as a pl aintif f to this acti on, and we grant th e mo tio n.No. 11-1112 21 could be reopened when a plai nti ff b ro ught a personal injury cl a im a g a ins t t he d e cedent

. Subsequent cas e s ha ve di sti ngui shed Schl oegl , but hav e not rej ected i ts conclu si on that

a clai m may be brought again st an estate i f the tim e for bri ngi ng suc h claim s has not expired. See McCue v

. Colantoni , 400 N.E.2d 683, 687 (Ill. App. Ct. 1980) (rej ecti ng a personal i njury clai m again st an estate bec a us e, unli ke the clai m i n Schl oegl , the clai m w as brought after the li mi tations period for person a l i njury clai ms had expired); Dichtl v

. Foster McGaw Hosp. ( In r e Estat e of Gara wany ), 399 N.E.2d 1024, 1026–27 (Ill. A p p

. C t. 1980) (rej ecti ng a late clai m brought by medi cal prov i ders becau se, unli ke i n Schl oegl , the i nsu rance p o l i cy already had been pai d to the estate ); s e e als o Rivera v

. T aylor , 336 N.E.2d 481, 485 (Ill. 1975) (notin g that the statute governi ng the period for bri ngi ng clai ms again st an admi ni strat or w ould
not bar a personal i njury clai m before the end of the li mi tations period for that clai m). Any clai m again st Mr

. Kill i an or Mr s. Kill i an’s estate w ould li kely be bro ug ht to enforce the agr eement betw een Mr s. Ki lli an and the Rush prov i ders or again st Mr . Kill i an for payment under the Illi noi s Fami ly Expense Act, 7 5 0 ILCS 65/15. The li mi tations period for acti ons on wri tte n contracts or wri tte n evidenc e of i ndebtedness i s ten yea r s. 735 ILCS 5/13-206. A fi v e-y ear lim i tations peri od appli es to “acti ons on

unw ritten contracts, expr essed or i mpli ed,” 735 ILCS 5/13-205, and clai ms for fami ly expenses under the Fami ly Expense Act, id. ; Juech te r v

. Gr ace , 371 N.E.2d 179, 181 (Ill. App. Ct. 1977). Th ese li mi tations periods may be tolled i f the party to be charged makes a partial payment, St. Franci s Med. Ctr

. v

. V ernon , 576 N.E.2d 1230, 1231 (Ill. App. Ct. 1991), or new22 No. 11-1112

wri tte n promis e to pay , Chas e v

. Bramhall , 98 N.E.2d 529, 531 (Ill. App. C t

. 1951). The recor d suggests that Mr s. Kill i an

a g r e ed to be responsi ble for the charges, see, e.g. , R.77-5 a t 3 6 (bi ll from Rush li sti ng Mr s. Kill i an as “Guarantor ”), and makes clear that at least some payments w ere made. There is no evidenc e as to whether the Kill i ans, or Mr

. Kill i an on behalf of the estate, also agr eed i n wri tin g to pay all or port i ons of the remain i ng bi lls as couns el i nforms us he has done ver ba l l y thro ughout the cour se of these proceedin gs.
In any ev ent, as w e hav e not e d , the estate has been

reo pened and , i n li ght of the proceedings i n thi s case, clai ms for payment that w ere bei ng sent t o M r

. Kill i an mi ght be pursued now again st the estate. Th is reality i s also certainly suf fi ci ent to supp or t our exer ci se of juris di cti on. The di ssen t makes muc h of i ts asses sment that, as again st the estate or Mr

. Kill i an personally , all relev ant l imitations periods hav e run, and there fore Mr

. Kill i an has no reasonably foreseeable i njury on the horizon. It i gnor es, how ev er , that the d e bt to the prov i ders already i ncu rr ed i s not contested i n t his acti on and persi sts as a mat t er of state law reg ardless of the runni ng of any li mi tations perio d. La Pine Sci entific Co. v

. Len ckos , 420 N.E.2d 655, 658 (Ill. App. Ct. 198 1 ) (n oting that
statutes of li mi tation “bar the r i ght t o sue for r ecov ery but do
not ext i ngui sh the debt whi ch remain s as before”); Cook v

. Britt , 290 N.E.2d 908, 909 (Ill. App. Ct. 1972 ) (“[A] statute of li mi tations i s an act li mi tin g the tim e wi thi n whi ch legal acti on shall be brought and affec t s t he remedy only and not a sub stanti v e right.”). In any ev ent, w e si mply do n ot know the scope of Mr

. Kill i an’s legal li abi li ty on that debt, no r d o w e know the ext ent of hi s exposure to th e detr i mentalNo. 11-1112 23

consequen ces of havin g si gni fi cant unpai d bills

. In short, whether Mr

. Kill i an or the estate w ould ha ve v ali d legal defenses , i nclu di ng appli cable statutes of li mi tatio n, to any separate legal acti on to enfor ce the debt i s si mply not a di sposi tiv e i nqui ry for pr esent purposes.
One more poin t bears no t ing

. The parties seem to hav e focus ed their jurisdi cti o na l arg uments on whether there i s a stated right to damages , and the abov e d isc us sion there fore
concentrates on t hat appro ach. How ev er , Mr . Kill i an’s pr ay er for relief i n the oper ativ e complai nt and, i ndeed, the w or ds of the statute , d o not restr i ct the relief av ai lable i n thi s case to monetar y relief. P art i cularly relev ant to the present case, the possi bi li ty of meani ngful declarator y relief supp or ts an

exer ci se of juris di cti on. 2 7

On the i ssu e of mo otness, “[t]he questi on i s whether the facts alleged, under all the ci rcums tances, show that there i s a sub stanti al contro v ersy , betw een parties havi ng ad v erse legal i ntere sts, of suf fi ci ent i mm e d ia cy and reality to w arr ant the i ssu a nc e o f a declarator y judgment.” Supe r T ir e Eng’g Co. v

. McCorkle , 416 U.S

. 1 15, 122 (1974) (i nternal quotat i on marks omi tte d). The recor d bef o r e us makes clear that thi s jurisdi cti onal threshold i s sati sfi ed. Mr

. Killia n’s fi nanci al affai rs are burdened wi th r e a l un certainty as a result of hi s wi fe’s last i llness , and a di stric t c ourt could aw ard declarato ry

Mr. Kil l i an’ s requested rel i ef i s b ro ad enough to encompass a decl arat or y 2 7 judgme nt

. S ee R.134 at 12 –1 3 (requesti ng rel i ef i n the fo rm of paymen t of medi cal b i l l s, at t o r ne y ’ s costs and fee s and “such other l egal or equitab l e rel i ef as the court deems appro pri ate”).24 No. 11-1112

relief that w ould alter si gn ific a nt ly that burden. When the 2 8 possi bi li ty of d e c l a ra tor y relief i s consi dered tog ether wi th past and potent i al future pecun i ary losses to the estate that mi ght justif y monetar y relief, there i s no questi on that the case before

us i s a li v e one and one i n whi ch the court, by gr anti ng a form of the re quested relief

, can alter subs tantially the relat i onshi p of the part i es.
On remand, the di stric t court mus t deal wi th the questi ons of l ia bil it y and, i f i t reaches the questi on, remedy

. Thi s latter i ssu e wi ll require the di stric t court to resolv e many factual and legal matter s on whi ch the present reco r d now permi ts only specu lation. For the present moment, i t i s suf fi ci ent to say that the recor d fai ls to establi sh defi ni tiv ely that t he K illians i ncu rr ed no harm as a result of the alleged breach. N o r i s i t clear that declarator y relief w ould be unav ai lable to Mr . Kill i an.
In li ght of the fact of losses already supp or ted by the recor d and persi sti ng unc ert ai nti es concerni ng the future l ia bili ty of the e st a te and i ts benefi ci ary , w e cannot say that “there i s nothin g for us to remedy , ev en i f w e w ere di sposed to do so.” S pence r v

. Kemn a , 523 U.S. 1, 18 (1998). The case i s no t mo o t , and w e mus t pro ceed to t he meri ts.

The harm necessary to succeed with the cl aim, as we hav e noted , b el ongs 2 8

to the estate. In l i g ht of the particul ar factual ci rcumstan ces of the case, however, Mr. Kil l i an’ s perso nal l i ab i l i tie s on Mrs. Kil l i an’ s debts woul d not b e i rrel eva nt to a cour t fashio ning appro p r i ate decl arat or y rel i ef i n i ts di screti on. In short, there i s more at stak e here tha n Mr. Kil l i an’ s “wi sh tha t the Rush do ctor s rece i v e addi tio nal compe nsa tio n fo r their services and

... desi re [ fo r] vindi catio n fo r the wro ng he perce i v es.” Dissent at 73

.No. 11-1112 25

B.

In deter mi ni ng whether a fi duci ary duty has been breached, our i nqui r y is gui ded by the plai n w or di ng of the
statute and by establi shed case l aw

. As fi duci aries , Roy al Management and Concert , i n fulf i lli ng their dutie s t o Mr s. Kill i an and other plan part i ci pants, mu st
di sch arg e [the ir ] duti es

... solely i n the i ntere st of the partici pants and benefi ci aries and

... wi t h t he

car e, ski ll, prudence, and di li gence under the ci rcumst a nces then prev ai li ng that a prudent man

a ct i ng i n a li ke capac i ty and fami li ar wi th su ch
matter s w ould use i n the conduc t of an enter pris e of a li ke character and wi th li ke aim s.
29 U.S.C. § 1104(a)( 1)(B)

. These duti es are analogo us to those of loy alty and c are that are i mposed upon a tr ustee under the common law

. See K enseth , 610 F .3d at 465–66.
Our deci si on i n Kens eth sets fort h, wi th gr eat preci si on, how the command of the stat ute ought to be appli ed i n a si tuation

suc h as the one before us. There, w e recog ni zed that

“once an ERIS A benefi ci ary has requested i nformation from an ERISA fi duci ary who i s aw are of the be ne fi ci ary ’s status and si tuation, the fi duci ary has an obli gation to conv ey complete and

accu rat e inf or mati on material to the benefi ci ary ’s cir cu ms t a nce, even if that requir es conveyi n g information abo ut which the benefic iar y did not specif ically in quir e. ”26 No. 11-1112

Id. at 466 (emphas i s i n or i gin al) (alterat i on omi tte d) (quoti ng Gr egg v

. T

ran s p

. W orkers of America Int’l , 343 F .3d 833, 845–46 (6th Ci r

. 2003)). “Regar dless of the pr e cis io n of hi s questi ons,

onc e a b e n e fi ci ary makes known hi s predic ament, the fi duci ary

‘ is un der a duty to commu ni cate

... all material facts in connecti on wi th t he tr ansac tion whi ch the tr ustee knows or should know .’” Id. at 467 (altera tion i n or i gin al) (quoti ng Restatement (S econd) of T rusts § 173, cm t. d (1959)).
If “the plan documents are clear and t he fi duci ary has

exer ci sed appropr i ate ov ersi ght ov er what i ts agents advis e plan partici pants and benefic i aries as to their rights under those documents, the fi duci a r y wi ll not be held li able si mply becau se a mi ni sterial, non-fi duci ary agent has g i v en inc o mplet e or mi staken advic e to an i nsu red.” Id. at 4 7 2

. Nev ert heless , i f a fi duci ary “supp l[i es] partici pants and benefi ci aries wi th plan documents that are si lent or ambi guous

on a recurr i ng topic, the fi duci ary exposes i tself to li abi li ty for the mi stakes that plan repr esentativ es mi ght make i n

answ ering ques tions on that subject.” Id.

In the present case, w e cannot say that the pert i nent plan documents w ere clear and co mplete as to whi ch service prov i ders w ere i n Mr s. Kill i an’s netw or k. The Kill i ans nev er hav e receiv ed a sum mary plan de sc ripti on, whi ch mus t contai n “t he co mp o siti on of the prov i der netw or k,” 29 C.F .R. § 2520.102-3(j)(3) , and the Master Group P olic y d o e s not 2 9

The summa ry pl an descri pti on fo r empl oyee health pl ans must i nclud e, 2 9
inter alia , (co ntinued. ..)No. 11-1112 27

i denti fy whi ch prov i ders are i n netw or k. Instead, benefi ci aries

are i nstructe d t o e it he r “call the numb er li sted on the back o f [thei r] medi cal i denti fi cati on card[s] ” o r “call[ ] the toll free telephone numb er on [thei r] ide nt i fi cati on card[s] ” to d e t ermin e whether a prov i der i s i n netw or k. The si tuation 3 0 before us i s there fore mu ch li ke the one that w e confronted i n Kens eth , where the policy documents’ only advic e for d e t e rmi ni ng “whether a particu lar course of tr eatment w a s

cover e d by the

... plan w as to call [the fi duci ary ]’s cus tomer service li ne.” 610 F .3d at 477. Here, the Master Group P olic y si mply i nstruct ed partici pants to contact Concert before undergoing tr eatment to deter mi ne whether the prov i ders

w ould be i n netw or k. They w ere giv en no more di rection. Concert asserts that di recting benefi ci ar i es to call i s the best

w ay to confi rm netw or k prov ide r i nformation because its li st of netw or k p r o v i ders frequently changes. W e do not

necess a r ily di sagree wi th Concert ’s conclu si on; w e merely poin t out that thi s approach made the plan d o cuments

( ...c onti nued) 2 9
pro v i sio ns governing the use of network pro v i ders, [and] the compo siti on of the pro v i der network,

... . In the case of pl ans with pro v i der networks, the l i sting of pro v i ders may b e furni shed as a separate do cument tha t accompanies the pl an’ s SPD, pro v i ded tha t the summar y p l an descri pti on contains a general descri pti on of the pro v i der network and pro v i ded further tha t the SPD con t ains a statem ent tha t pro v i der l i sts are furni shed automaticall y, witho ut charge,

as a separate do cument.

29 C.F.R. § 25 20 .10 2- 3( j) (3 ).

R.25 9- 3 at 1 5, 19

. 3 028 No. 11-1112

i ncomplete. Consequently , C onc ert “expose[d] i tself to li abi li ty for the mi stakes that [i ts] repr esentativ es mi ght ma k e i n

answ ering [Mr

. Kill i an’s] questi ons on that sub ject.” Id. at 472.

C.

B e ca use the i nstructi ons giv en i n the prov i ded plan documents w ere defi ci ent, w e mus t ex ami ne the sub stance o f the telephone calls bet w e e n Mr

. Kill i an and Concert

. In our view , a reasonable tr i er of fact certainly could conclu de that Concert w as aw are (or , at the v ery least, that i t should hav e been aw are) that Mr

. Kill i an w as atte mpti ng to deter mi ne whether Rush and the ph ysi ci ans who w ere about to perfor m surgery on Mr s. Ki lli an w ere withi n Mrs. Killi an’s netw or k.

1. The First T

elephone Call
The front of M r s. Kill i an’s i nsu rance card prov i des telephone numb ers under four di fferent headi ngs. The fi rst numb er i s fo r “deter mi n[i ng] Prov i der partici pation.” Thi s 3 1

w as a “dedi cated li ne” for prov i di ng “[t]he most accurate, up to date information ” reg ardin g prov i der partici pation. Becaus e 3 2 thi s line w as dedi cated to i nformi ng benefi ci aries whether prov i ders w ere i n netw or k, Concert knew (or , at the v ery least, should hav e known) that benefi ci aries w ould ca l l t hi s li ne to deter mi ne a prov i der’s netw or k status. As su ch, when a

R.82 -7 at 2. 3 1

R.25 9- 5 at 1 0 ( emphas i s i n or i ginal)

. 3 2No. 11-1112 29

benefi ci ary calls thi s numb e r , Concert “‘has an obli gation to

conv ey complete and accu rat e inf o rmation material to [prov i der partici pation status], even i f th at r equir es conveyin g in fo r ma t io n a b o ut w h ich the benefic iary did not specif ically inqui r e ,’” Kens eth , 610 F .3d at 466 (emphas i s i n origi nal) ( quoting Gr egg , 343 F .3d at 845

– 46), “[r]egar dless of the preci si on of hi s questi ons,” id. at 467.

Mr

. Kill i an called thi s numb er on April 7, 2006. After prov i di ng Mr s. Kill i an’s name and card numb er , he sai d, “w e

are here for a se co nd opin i on and she i s g oin g—they w ant to admi t her because w e already deter mi ned the tumor has to come off.” R.253 at 72; see also id. at 125 (“I sai d she w as bei ng admi tte d to the hospi tal and they w ere going t o d o the surgery .”). Mr

. Kill i an refer red to Rush as “St

. Luk e’s,” the

name that he alw ays had used for t his hospi tal. The Concert repr esentativ e sai d that she w as unabl e to fi nd a li sti ng u nder that name and i nstructed Mr

. Kill i an to “[g]ive [her] a call back.” She als o s ai d that Mrs. Kill i an should “go ahead wi th

3 3 whatev er had to be done.” Although th e r e presentativ e di d 3 4

no t st a te di rectly that Rush w as i n Mr s. Kill i an’s netw or k, a reasonable tr i er of fact could conclu de that thi s repr esentativ e fai led “to conv ey complete and accu rat e i nformation material
to [Mrs. Kill i an]’s ci rcums tance.” Kens eth , 610 F .3d at 466 (i nternal quotat i on marks omi tte d). Mr

. Kill i an at one poin t testif i ed that he and the repr esentativ e “nev er deter mi ned

R.25 3 at 7 2. 3 3

Id

. at 12 4– 25

. 3 430 No. 11-1112 anythin g,” duri ng thi s teleph o ne call. How ev er , he also 3 5 testif i ed that, at the end of the tw o cal l s, he beli ev ed that Mr s. Kill i an’ s surgery w ould be cov ered “[b] ecaus e nobody

ev er sai d these [prov i ders] are out -of-netw or k.” 3 6

T akin g these facts i n the li ght most fav or able to Mr

. Kill i an for purpose s o f summary judgment, a reasonable tr i er of fact could conclu de: (1) that Mr

. Killia n w a s concerned about whether the prov i ders w ere i n netw or k; (2) that Mr

. Kill i an called the nu mb e r that Mr s. Kill i an’s i nsu rance card sai d should be used to deter mi ne prov i der partici pation to resolv e thi s questi on; (3) that the repr esentativ e knew that Mr

. Kill i an

w as seeki ng thi s i nfo r mati on; (4) that the repr esentativ e told Mr

. Kill i an to “go ahead wi th whatev er had to be done,” ev en though she knew th a t sh e had not been able to establi sh the prov i der’s netw or k status; and (5) that Mr

. Kill i an left that telephone call beli eving that Mr s. Kill i an could “go ahead wi th whatev er ha d t o be done” becau se he had follow ed the i nstructi ons on Mr s. Kill i an’s i nsu rance card, w as told to do so and receiv ed no w arnin g that the “go ahe a d” w as not to be understood as an authorizat io n. Mr

. Kill i an’s testim ony i s

sus cep t ible to the i nterpr etat i on that, duri ng the stress of the moment, he beli ev ed that he could rely on the repr esentativ e’s i nstructi on to “go ahead.” Mr

. Kill i an “should not be penali zed becau se he fai led to comprehend the techni cal di fference betw een ‘[go ahead]’ and ‘[the prov i d e r i s i n netw or k].’ The

same i gnor ance that preci pi tate s t he need for answ ers often

Id

. at 72

. 3 5

Id

. at 13 6. 3 6No. 11-1112 31

li mi ts the abi li ty to ask preci sely the right questi ons.” Kens eth , 610 F .3d at 467. A fi nder of fact w ould be enti tled to conclu de that , a t t he v ery least, the repr esentativ e should hav e i nstructed Mr

. Kill i an that she w as unabl e to locate an entry i n he r sy stem for “St

. Luke’s” and that she could make no repr esentations at that tim e as to whether the prov i der w as i n netw or k.
The fact that Mr

. Kill i an made a second call does not

necess arily negate hi s clai m of relianc e on the i nstr uc t io n to “go ahe a d.” Mr

. Kill i an testif i ed that, i n maki ng the second telephone call, he w a s calli ng “for preadmi ssi on,” as he w as i nstructed to do by Mr s. Kil l ian’s i nsu rance card. The card 3 7 sai d that “[e]mergency admi ssi ons mus t be certifi ed wi thi n 48 hours” and that thi s second nu mber should b e used to obtain the necess ary “UTILIZA TION REVIEW

.” T ak ing these facts 3 8 i n the li ght most fav or able to M r . Kill i an, a reasonable trier of fact could conclu de that Mr

. Kill i an made the se co nd call to obtain the required “certifi cati on,” or “UTILIZA TION REVIEW ,” for hi s wi fe’s su rg ery . Havin g j ust learned that t he surgi cal procedure w as neces sa r y for hi s wi fe to li v e longer than a few days, a reasonable tr i er of fact could conclu de that 3 9 Mr

. Kill i an beli ev ed thi s w as an emerge ncy procedure for whi ch he w as not required to obtain precert i fi cati on sev en days i n adv ance.

Id

. at 73 –7 4. 3 7

R.82 -7 at 3. 3 8

R.25 3 at 1 27 –2 8. 3 932 No. 11-1112

2. The Second T

elephone Call
When Mr

. Kill i an made the second telephone call, he di aled
t he se co nd, and most prominen t, numb er on the front of Mr s. Kill i an’s i nsu rance card, whi ch w as for cus tomer service,

as w ell as for uti li zation r eview

. As noted ear li er

, thi s w as the

same numb e r li sted on the back of the card for uti li zation

rev i ew and medi cal clai ms. There i s evidenc e that Concert had encouraged benefi ci aries to use this numbe r for deter mi ni ng p r o v i der partici pation as w ell. Speci fi cally , i n the Mast e r Group P olic y

, Concert i nstructed benefi ci aries that they “mus t call the numb e r l ist e d on the back of [thei r] medi cal i denti fi cati on card” i n or der “[t]o c onfi rm that

... [a] prov i der is a CURRENT partici pant i n [the benefi ci ary ’s] prov i d e r Netw or k.” The back of Mr s. Kill i an’s i nsu rance card prov i des

4 0
tw o di fferent telephone numb ers under three separate headi ngs: the cus tomer service numb er from the fron t o f t he card i s prov i ded twi ce; a vis i on benefi ts numbe r i s prov i ded

once. A benefi ci ary who seeks to confi rm that a hospi tal i s i n 4 1
netw or k by “calli ng the numb er li sted on t he back” of hi s i ns ur a nce card mus t call ei ther the numb er Mr

. Kill i an called

or the numb er for the “V i si on Ser vic e Plan,” whi ch clearly w as i nappli cable to the Kill i ans’ sit uati on. Therefore , Concert arg uably should hav e known that be nefi ci aries suc h as Mr

. Kill i an w ould be calli ng thi s li ne to deter mi ne whether certain providers w ere in thei r netw or k.

R.25 9- 3 at 1 5 ( emphas i s added)

. 4 0

R.82 -7 at 3. 4 1No. 11-1112 33

Mor eov er

, the second numb er that Mr

. Kill i an called w as the corr ect, and apparently the only , numb er that he could call
to obtain the required certifi cati on rev i ew wi th respect to the particu lar surgi cal procedure t ha t hi s wi fe w as about to undergo. Gi v en his earlier telephone conv ersation, a reasonable tr i er of fact certainly could conclu de that any further i nformation as to whether the prov i de rs w ere i n Mr s. Kill i an’s netw or k w ould hav e been prov i ded i n th e course of thi s conv ersation reg ardin g the aut horizati on of the particu lar pro cedure. Indeed, under these ci rcums t ances , Concert had an affi rmativ e obli gation to i nform Mr

. Kill i an that the prov i ders Mr s. Kill i an w as about to see w ere out of netw or k. See Kens eth , 610 F .3d at 466 (“[T ]he tr ustee i s under a duty to commu ni cate to the benefi ci ary material facts affec tin g t he i ntere st of the benefi ci ary whi ch he knows the benefi ci ary does not know and wh ich the benefi ci ary needs to know for hi s prot ecti on i n deali ng wi th a thi rd person.” (in ter nal quotat i on marks omi tte d)). On thi s recor d, a rat i onal tr i er of fact could conclu de that thi s second repr esenta t ive w as aw are that Mr

. Kill i an’s telephone calls w ere an effort to confi rm tw o poin t s: (1 ) that the health care prov i ders tr e atin g hi s wi fe w ere wi thi n the Plan’s netw or k; and (2) that the p a rt i cular procedures contemplated for her care w ere authorized by the Plan. In thi s second call, Mr

. Kill i an stated: “I’m tr yin g to get confi rmation that w e are going t o be—my wi fe i s going to be admi tte d to Rush.” The r epresentat i v e laughed, said, “Oh, y ou mean S t.

4 2 Luke’s,” and seemed to speak to a person si tting next to her

.

R.25 3 at 7 3. 4 234 No. 11-1112

The second repr esentativ e then i nformed Mr

. Kill i an that the ho sp i tal i s known as “Rush Presbyter i an.” At some poin t, 4 3 Mr

. Kill i an sai d, “ S usan i s going to be admi tte d,” and the repr esentativ e sai d “[o]kay .” Fr om her laughter and atte mpt 4 4
at humor , a reasonable fi nder of fact w ell mi ght conclu de that thi s second repr esentativ e knew somethi ng about Mr

. Kill i an’s prior call. It w ould be reasonable to i nfer that thi s repr esentativ e knew that Mr

. Kill i an had atte mpted to deter mi ne whether “St

. Luke’s” w as i n Mr s. Kill i an’s netw or k duri ng Mr

. Killi an’s prior call to the numb er for deter mi ni ng prov i der par tic i pation.

It i s tr ue that when Mr

. Kill i an called Concert , p r ov i ded Mr s. Kill i an’s po l icy numb er , told Concert where they w ere and sai d that Mr s. Kill i an needed i mmedi ate brai n surgery , he di d not also ask the speci fi c ques tion, “Is Rush an i n-netw or k prov i der?” How ev er

, nei ther the Master Group P olic y nor our holdi ng i n Kens eth requires benefi ci aries to ask suc h a speci fi c q ue st io n. The Master Group P olic y si mply told Mr

. Kill i an t o call a numb er on the i nsu rance card, whi ch he di d twi ce. U nder Kens eth , the fi duci ary ’s duty to prov i de complete a nd

accu rat e i nformation, ev en i f the be ne fici ary does not speci fi cally i nqui re, i s t r igger ed when the benefi ci ary makes the ERIS A fi duci ary “aw are of the benefi ci ary ’s status and si tuation.” 610 F .3d at 466 (i nternal quotation marks omi tte d). A rat i onal factfi nder could conclu de that Mr

. K illi an put Concert on notic e of hi s status and si tuation. The fi rst Concert

Id

. 4 3

Id

. 4 4No. 11-1112 35

re p re s e n tativ e’s atte mpt to locate “St

. Luke’s” sug ge s ts th a t s h e

w as aw are of hi s need to deter mi ne Rush’s netw or k status, and the second r e p r e sent ativ e’s comments suggest that she w as

aw are o f the earlier call to the netw or k pro vider num ber

. 4 5

The di ssent argues tha t i t i s i mpossi b l e fo r Mr. Kil l i an to ever hav e call ed 4 5

t he p r o vi d er partici patio n l i ne b ecause, i t ass erts, the onl y way fo r the

seco nd repr esentative to hav e had knowl edge of Mr . Kil l i an’ s pri or call i s i f M r

. Kil l i an call ed the customer service numb er b oth times. There are a few pr oble ms with this theo ry.
Fir st, this ass umptio n, whil e pl ausible, i s not a fact tha t we can ass ume i n Co ncert’s fav or at su mma ry judgment. Co ncert’s v i ce presi dent of

o p e r ati ons testif i ed tha t “the network” ope rates the 80 0 numb er fo r deter mini ng pro v i der partici patio n, R.115 -3 at 20 0, b ut he di d not testif y as to w h ether Co ncert and “the network” sha re faci l i tie s or empl oyee s and any presumpti ons must be ma de i n Mr. Ki l l i an’ s fav or . Repre sentat i ons made b y counsel at or al argumen t tha t Co ncert and PHCS do not sha re empl oyee s and tha t t el ephone call s to each li ne are di rected to separate faci l i tie s may b e true, b ut on summa ry judgment counsel ’s factual ass ert i o ns at or al argumen t do not substitute f or rec or d evid ence.
Seco nd, i f we co u l d as su me tha t Mr. Kil l i an i s mistaken ab out which numb ers he call ed and tha t he di d call the sam e numb er twice , whether b oth tel ephone call s were made to the customer service l i ne or the pro v i der partici patio n l i ne i s a fact tha t must b e construed i n the l i ght most fav or ab l e to Mr. Ki l l i an.
Finall y, even i f we coul d ass ume tha t Mr. Kil l i an call ed the customer service l i ne b oth times, a factfi nder stil l coul d concl ude tha t Co ncert was on noti ce of his need fo r pro v i der network i nfor mat i on be c au se , as noted ab ove, th e Master Group Pol i cy instructed b enefi ci aries “[t] o confi rm t hat Your

... p r ovid er i s a C URRENT partici pant ...You must cal l the numb er l i sted on the back o f Yo u r me di cal i denti fi catio n card.” R.259 -3 at 15 (emphasis added)

. The customer service/ util i za tio n review numb er was the onl y pote ntiall y appli cab l e numb er on the b ack of Mrs. Kil l i an’ s card. Afte r (co ntinued. ..)36 No. 11-1112

Nor does the sum mary judgment record es tabli sh that the Kill i ans suf fered no harm. It i s undi sput ed that the Kill i ans

w ould ha v e made an appoi ntment wi th Dr

. Bonomi for a second opin i on reg ardless of hi s netw or k partici pation status, but tw o days elapsed betw een the telephone calls and the actual surgery

. A rat i onal fi nder of fact could conclu de that the Kill i ans w ould hav e foun d a no ther hospi tal or sought emerge ncy admi ssi on at Rush had Concert i nformed them that

( ...c onti nued) 4 5 di recti ng benefi ci aries seeki ng provid er i nfor mat i on to call “the” numb er

on the back o f t he card, Co ncert cann ot av oi d i ts fi duci ary duti es b y suggesting tha t Mr. Kil l i an shoul d hav e call ed a numb er on the front of the card.

The d i ss ent also argues tha t Mr. Kil l i an nev er call ed to deter mine pro v i der network statu s and p o i nt s to Mr. Kil l i an’ s depo siti on where he testif i ed tha t he tol d the repre sentat i v e tha t his wif e was b ei ng admitted and tha t he call ed b ecause he was supposed to call fo r preadmi ssio n. Dissent at 27 –3 1. The di ssent argu es tha t b ecause, i n his depo siti on, Mr. Kil l i an said “pre admissio n” rather tha n “pro v i der network i nfor mat i on,” he coul d not hav e pl aced the fi duci ary on noti c e o f his need fo r pro v i der network i nfor mat i on.
T hi s v i ew suggests tha t, contrary to our hol di ng i n Kens eth v. D ea n Health Plan, Inc. , 61 0 F.3d 45 2 (7 th Ci r. 20 10 ), the benefici ary must use the

exa ct terms as d efi ned b y the fi duci ary befo re the fi duci ary i s r e qu i red to pro v i de i nfor mat i on, b ut the i ssue i s whether Mr. Kil l i an’ s i nteractio n with the repre se nt atives was suffi ci ent to put them on noti ce of his need fo r pro v i der network i nf or mat i on. Al though Mr. Kil l i an used the word “pre admissio n” i n his depo siti on when tel l i ng the attorneys the purpo se of his call , he di d not testif y tha t he tol d the repre sentat i v es tha t he was call i ng fo r preadmi ssio n. His i nteractio n with the repre sentat i v es i nclud ed call i ng the desi g na t e d number, i nfor ming the repre sentat i v e of his l ocati on and tel l i ng the repre sentat i v e o f the nee ded surgery.No. 11-1112 37

Rush w a s out of netw or k. Concert fai ls to poin t to any evidenc e i n supp or t of i ts asserti on that the dec i si on to obtain

a second opin io n reg ardless of netw or k status necess arily i mpli es that the Kill i ans w o ul d have stay ed and had the surgery perfor med at Rush ev en i f Concert told them that Rush

w as out of netw or k. 4 6

ERIS A d oes not requi re a fi duci ary to set out on a quest to

unc ov er some kin d of harm that mi ght befall a benefi ci ary

. But thi s case requires no suc h expediti on. It si mply requ ir e s a n appli cati on of the rule, art i culated i n Kens eth , that an i nsu rance company cannot defeat a breach of fi duci ary duty claim by asserti ng that it w as unaw are that an i nsu red w as seeki ng certain material plan i nformation when the i nsu red called tw o di ffer e nt numb ers that the i nsu rance company i tself establi shed to prov i de the sort of i nformation i n questi on. Thi s i s particu larly tr ue when the repr esentativ es tell an i nsu red to “go ahead wi th whatev er ha [ s] to be done” whi le knowi ng (or 4 7
at least havin g reason to know) that the i nsu red i s confus e d about thi s aspect of hi s plan a nd i s about to undergo a costly procedure that wi ll not be fully cov ered. W e already hav e held

A l t ho u g h M r

. Kil l i an b ears the ulti mat e b urden at tri al, “[ a] party 4 6 seeki ng summa ry judgment b ears an i niti al b urden of pro v i ng there is ‘n o mat eri al questio n of fact with respect t o an e ssential el ement of the non-moving par t y ’ s case.’” MMG Fin. Corp. v. Midwest Amusements Park, LLC , 63 0 F.3d 65 1, 65 7 (7 th Ci r. 20 11 ) (quoti ng Delta Consul ting Grp., Inc. v. R. Randle Constr., Inc. , 5 54 F.3 d 1 13 3, 11 37 (7 th Ci r. 2 00 9) ).

Co ncert depo sed Mr. Kil l i an, b ut nev er ask ed whether Mrs. Kil l i an was wel l eno ugh to travel to a di ffe rent hospi tal.

R.25 3 at 1 25

. 4 738 No. 11-1112

that summary judgment i s i nappropr i ate where the “plan documents

... fai led to explain a d e q uately” a particu lar prov i si on and the lack of clari ty “w as then exacerbate d by [the fi d uc i ary ’s agents] when [the benefi ci ary ] i nqui red about her

cov erag e.” Bowerman v

. W al-M art Stor es, Inc. , 226 F .3d 574, 591 (7th Ci r

. 2000). I n Kens eth , w e read Bowerman to establi sh that

“ by supp lyin g partici pants and benefi ci aries wi th plan documents that are si lent or ambi guous on a recur r ing t opic , the fi duci ary exposes i tself to li abi li ty for the mi stakes that plan repr esentativ es mi ght make i n answ ering questi ons on that sub ject.” 610 F .3d at 472 (c it ing Bowerman , 226 F .3d at 591). Kens eth further i ndi cated that the prin ci ple emerging from Bowerman i s “ especially true when the fi duci ary has no t take n appropr i ate steps to make sure that mi ni sterial employ ees wi ll prov i de an i nsu red wit h the complete and accu rat e i nformation that i s mi ssi ng from the plan documents themselv es.” Id. at 472 (emphasi s added)

. 4 8

The di ssent poi nts to Kens eth fo r the pro posi tio n tha t “Co ncert cann ot b e 4 8
l i ab l e fo r a b reach of fi duci ary duty b ased on the actio ns of a non-fi duci ary l i ke PHCS,” Dissent at 84 n.16 , b ut the Kens eth passa ge quoted i s noti ng tha t

a fi d u ci ary “cannot b e held l i ab l e on the b asis of res pond eat superior .” Kens eth , 61 0 F.3d at 46 5 (emphasis added)

. In fact, we ha ve he l d tha t a fi duci ary c an be l i ab l e fo r i naccura te or misl eadi ng info rmatio n pro v i ded b y a nonfi duci ary. See id. at 46 9 (hol di ng tha t a fi duci ary coul d b reach i ts duty b y i nv i ting i nqu i ri es and not warning b enefi ci aries tha t they coul d not rel y on the adv i ce given b y customer service repre sentat i v es); Bowerman v. Wal-Mart Stores, Inc. , 2 26 F.3 d 5 74 , 5 91 (7 th Ci r. 2 00 0) (hol di ng a fi duci ary l i ab l e wh e n i nadequa ci es i n the pl an do cuments were exa cerbat ed b y i ncorr ect and mi sle ading i nfor mat i on f ro m its agents).No. 11-1112 39

Conclus ion
On the deni al of be nefi ts clai m, w e affi rm the di stric t court’s gr ant of summa r y judgment, but remand wi th di rections for couns el fo r both si des to sub mi t a jo i nt sti pulati on concerni ng whether Rush Uni v ersi ty Hospi tal, Dr

. Barnes and Dr

. Bonomi w ere wi thi n Mr s. Kill i an’s prov i der
netw or k. If couns el are not a bl e t o a gr ee on a conclu si v e sti pulati on, the di stric t court should r e so lv e thi s i ssu e on remand. 4 9

On the breach of fi duci ary duty clai m, w e affi rm i n part and

rev erse i n part the judgment of the di stric t court. W e affi rm the di stric t court’s gr ant of su mm a r y judgment i n fav or of Roy al Management and C oncert wi th respect to their fai lure to prov i de Mr s. Kill i an wi th a sum mary plan d e sc ripti on. Consonant wi th thi s opin i on, w e rev erse the gr ant of sum mary judgment on the breach of fi duci ary duty clai m wi th respect to Mr

. Kill i an’s telephone call i nqui ries and remand to permi t the
tr i er of fact to deter mi ne: (1) whether the telephone calls put Concert on adequate notic e, thus g i ving ris e to a duty to di scl ose material i nformation relat ed to the Kill i ans’ si tuation, (2) whether Concert breached thi s duty a nd (3) whether the breach harmed Mr . Kill i an. 5 0

Thi s i s the resul t reached by the panel. Killian I , 6 80 F.3 d at 76 4. 4 9

On r e ma nd , the di stric t cour t also must address the type of remedy 5 0

av ail ab l e under E RI SA

. ERISA pro v i des fo r equitab l e rel i ef fo r b reach of fi duci ary duty cl aims, see 29 U.S .C. § 11 32 (a)(3 ); the Supre me Co urt rece ntly has suggested tha t equitab l e rel i ef can i nclud e monetary paymen ts through estopp el and “surcharges,” see CIGNA Corp. v. Amara , 13 1 S. Ct. 18 66 , 18 80 (co ntinued. ..)40 No. 11-1112

O n t he statuto ry damages iss ue, w e remand the matte r t o the di stric t court to per mit a recalculati on of the aw ard as outlin ed i n the panel’s opi ni on.
W e gr ant Mr . Kill i an’s moti on to proceed as admi ni strat or of hi s wi fe’s estate as w ell as i n hi s i ndi vidu al capac i ty

. IT IS S O OR DERED.

( ...c onti nued) 5 0 (2 01 1)

.No. 11-1112 4142 No. 11

‐ 1112

P OSNER , Circuit Judge , concurring in the judgment. I agree with the outcome, and with much of the analysis in the ma

‐ jority opinion. But I disagree that the obligation at issue in the appeal derives from a fiduciary duty. This is really a breach of contract case, and treating it as such not only is the
correct approach but simplifies analysis wonderfully.

But before discussing the merits, I want to say a few words about mootness, the subject of a protracted debate be

‐ tween Judges Ripple and Manion. Both quote the standard formula, repeatedly endlessly in cases, that a case is moot if

a judgment on the merits in favor of the plaintiff would not give the plaintiff money or anything else of tangible value. In other words, if something happens in the course of the

case that, had it happened before the case was brought, would have required dismissal for lack of standing, the case must be dismissed as moot; the plaintiff has lost standing. But that isn’t the actual doctrine. See generally Matthew I. Hall, “The Partially Prudential Doctrine of Mootness,” 77 Geo. Wash. L. Rev

. 562 (2009). A case is not moot, for example, if the defendant voluntarily discontinues the practice that the plaintiff sought to enjoin, but maybe plans to resume it if the suit is dismissed as moot. United States v. W.T. Grant Co. , 345 U.S. 629, 632–33 (1953). Or if the plaintiff can never get relief if mootness is a bar, as in a suit to establish a woman’s right to an abortion because the suit can’t be completed in the nine months between her becoming pregnant and giving birth. Roe v. Wade , 410 U.S. 113, 125 (1973). (For the general principle that excepts from the doctrine of mootness orders capable of repetition but evading review, see, e.g., Southern Pacific Terminal Co. v. ICC , 219 U.S. 498, 514–16 (1911).) Nor does a class action suit become moot (after the class is certi

‐ fied), because the named plaintiff has settled with the de

‐No. 11

‐ 1112 43

fendant and so no longer has anything to gain from a judg

‐ ment. Genesis Healthcare Corp. v. Symczyk , 133 S. Ct. 1523, 1529–30 (2013); County of Riverside v. McLaughlin , 500 U.S. 44, 51–52 (1991).
The reason that mootness is a less strict doctrine than standing is that a case that becomes moot, unlike a case in which there never was standing, is a case that originally was properly before the court, and the court may have made, as it was entitled to make, substantive rulings in the case. “[B]y the time mootness is an issue, the case has been brought and litigated, often (as here) for years. To abandon the case at an advanced stage may prove more wasteful than frugal. This argument from sunk costs does not license courts to retain jurisdiction over cases in which one or both of the parties plainly lack a continuing interest, as when the parties have settled or a plaintiff pursuing a nonsurviving claim has died.

... But the argument surely highlights an important differ

‐ ence between the two doctrines.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U.S. 167, 191– 92 (2000) (footnote omitted).
When want of standing is detected at the outset of suit, there is no wasted court motion. But mootness by definition is detected later, and there can be a great deal of wasted mo

‐ tion if mootness is equated to an absence of standing and in consequence everything the court has done to date in the

case is wiped out. The present case was filed seven years ago. The passage of time has witnessed changes that argua

‐ bly moot the issue in the case. I think one could argue that when a case is fully adversary until the very end, the prece

‐ dential value of a decision on the merits would justify carv

‐ ing still another exception to the doctrine of mootness. But44 No. 11

‐ 1112

we don’t have to go that far in this case. Judge Ripple has presented grounds for regarding Mr. Killian as continuing to have a tangible stake in a favorable judgment. Those grounds are tenuous; but, when the issue is mootness, even
a tenuous ground should suffice to avert dismissal.
So on to the merits. The administrator of an employee welfare benefits plan (the type of plan at issue in this case) has a fiduciary duty to the plan’s participants “to the extent” that “he has any discretionary authority or discretionary re

‐ sponsibility in the administration of [the] plan.” 29 U.S.C. § 1002(21)(A)(iii); see Pegram v. Herdrich , 530 U.S. 211, 223–26 (2000); Baker v. Kingsley , 387 F.3d 649, 660 (7th Cir. 2004); Johnson v. Georgia

‐ Pacific Corp. , 19 F.3d 1184, 1188 (7th Cir. 1994); In re Citigroup ERISA Litigation , 662 F.3d 128, 135 (2d Cir. 2011). (Other subsections of ERISA concerning fiduciary obligation, unrelated to this case, focus on financial issues in plan administration. See 29 U.S.C. §§ 1002(21)(A)(i), (ii).)

To call authority “discretionary” is to say that the per

‐ sons affected by its exercise, such as the plaintiff in this case, have no crisply defined right to limits on that exercise. The plan administrator has been given discretion by the plan to decide for example how much to spend on training his em

‐ ployees, including telephone receptionists who answer par

‐ ticipants’ questions about coverage. Such decisions, being entrusted to the administrator, are not to be picked apart by appeal to the wisdom of hindsight. The participants’ protec

‐ tion from the plan administrator’s abusing his discretion lies in the rule that a fiduciary must discharge his responsibili

‐ ties with the same prudence—trading off costs and benefits with the same care—that he would employ were he a recipi

‐No. 11

‐ 1112 45

ent rather than a provider of such services: he must treat the participants as well as he would treat himself.
There is no evidence of abuse of discretion in this case and thus of a violation of a fiduciary obligation. There was a breach of contract, but not every such breach is a violation of

a fiduciary obligation. Liability for breach of contract is strict. The plan administrator may discharge his fiduciary obligations scrupulously, yet if an employee, acting within the scope of his employment, makes a mistake that gives rise to a breach of contract, the mistake and hence the breach will be imputed to the plan administrator by the doctrine of re

‐ spondeat superior—but without any implication that the administrator committed a breach of trust.
No matter. ERISA authorizes a plan participant to bring a suit “to recover benefits due to him under the terms of his plan,” 29 U.S.C. § 1132(a)(1)(B)—benefits in other words that the plan promised. Such a suit treats the plan as a contract. Herzberger v. Standard Ins. Co. , 205 F.3d 327, 330 (7th Cir. 2000) ; Harlick v. Blue Shield of California , 686 F.3d 699, 708–09 (9th Cir. 2012). The plaintiff in this case is complaining about

a breach of the plan by the claims administrator, an insur

‐ ance company hired by (and for purposes of appeal indis

‐ tinguishable from) the plan administrator. The plaintiff seeks “a contract remedy under the terms of the plan.” Ponsetti v. GE Pension Plan , 614 F.3d 684, 695 (7th Cir. 2010). As that is all he seeks, there is no need, or occasion, to decide whether the plan administrator violated a fiduciary duty.
ERISA preempts breach of contract suits based on state law. 29 U.S.C. § 1144. But all this means is that in an ERISA suit for breach of contract “the relevant principles of contract interpretation are not those of any particular state’s contract46 No. 11

‐ 1112

law, but rather are a body of federal common law tailored to the policies of ERISA.” Mathews v. Sears Pension Plan , 144 F.3d 461, 465 (7th Cir. 1998); see also Pilot Life Ins. Co. v. De

‐ deaux , 481 U.S. 41, 55–56 (1987). Not all American common law is an emanation from state courts. When Justice Holmes, protesting against the rule of Swift v. Tyson allowing federal
courts to apply “general” common law in diversity cases, said that “the common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified,” Southern Pacific Co. v. Jen

‐ sen, 244 U.S. 205, 222 (1917) (dissenting opinion), he didn’t

mean that states were the only sovereigns that create com

‐ mon law. Just as federal common law governs suits charging breach of federal government contracts, so ERISA’s preemp

‐ tion provision makes federal common law govern suits for breach of the terms of ERISA plans.
It’s true that in suits to enforce federal government con

‐ tracts the Supreme Court has told us “to adopt the ready

‐ made body of state law as the federal rule of decision until Congress strikes a different accommodation.” Empire Healthchoice Assurance, Inc. v. McVeigh , 547 U.S. 677, 691–92 (2006), quoting United States v. Kimbell Foods, Inc., 440 U.S. 715, 740 (1979). But that approach isn’t possible in this case because ERISA preempts state law in order “to ensure that plans and plan sponsors would be subject to a uniform body of benefits law” and thus “minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Govern

‐ ment.” Ingersoll

‐ Rand Co. v. McClendon , 498 U.S. 133, 142 (1990).No. 11

‐ 1112 47

To treat the present case as charging breach of a fiduciary obligation creates uncertainty as to remedy—uncertainty we don’t need. ERISA provides only equitable relief to a partici

‐ pant complaining of a violation of such an obligation, 29 U.S.C. § 1132(a)(3)(B); Mertens v. Hewitt Associates, 508 U.S. 248, 255–58, 266 (1993); Kenseth v. Dean Health Plan, Inc. , 610 F.3d 452, 482 (7th Cir. 2010), whereas all that the plaintiff in this case seeks is simple damages. Monetary relief is some

‐ times permissible in equitable cases, but why enter that briar patch? Casting this as a case of fiduciary obligation also creates uncertainty concerning the scope of a plan administrator’s duty. How expansive is the fiduciary obligation to inform a plan participant of the differences in the plan’s reimburse

‐ ment for charges by alternative providers of medical treat

‐ ment? What body of fiduciary law supplies an answer to that question?
And notice that the fiduciary approach arbitrarily and paradoxically bestows greater rights on participants in and beneficiaries of ERISA plans than on beneficiaries of func

‐ tionally identical insurance plans not governed by ERISA, and even Medicare Advantage plans. What sense does that make? Analysis of the case as a suit for breach of contract is straightforward. The plan creates a “provider network” of hospitals and other health care providers. A plan participant who obtains treatment within the network is entitled to re

‐ imbursement of a much larger fraction of his expenses than if he’s treated by an out

‐ of

‐ network provider. The difference in this case, in which expensive surgery was performed in an out

‐ of

‐ network hospital (Rush), was $80,000. Implicitly the48 No. 11

‐ 1112

plan administrator was required, when asked, to furnish the participant in a timely manner with an adequate means of determining whether the participant’s preferred provider

was in or out of the network. To provide this information would not have involved a difficult determination of the scope of coverage, a determination that would have required the receptionist who took the plaintiff’s call to interpret the plan. She just had to look up the hospital’s name in a data

‐ base or, if unable to do so, tell the plaintiff where to find the requested information online or in his plan documents. She failed to do this, and the result was that all he had to guide him was a confusing insurance card with multiple phone numbers unclearly labeled as to purpose. The provider’s contractual duty is to furnish requested information in a “timely” manner, lest delay, caused for ex

‐ ample by refusing to provide the information orally, prevent the participant from receiving the information in time to act

on it. The plaintiff claims that when he told the receptionist that his wife was receiving treatment at “St. Luke’s” (Rush

‐ Presbyterian

‐ St. Luke’s Medical Center) the receptionist told him to “go ahead with whatever had to be done.” She did
not tell him that the hospital was not in the provider net

‐ work. Nor did she tell him where he could find the list of Chicago hospitals that are in the network—indeed, the plain

‐ tiff alleges that the list had not been made publicly available.
A contract consists not only of explicit terms but of im

‐ plicit ones needed to make the explicit terms effective. Stolt

‐ Nielsen S.A. v. AnimalFeeds ’International Corp. , 130 S. Ct. 1758, 1775 (2010); Bidlack v. Wheelabrator Corp. , 993 F.2d 603, 607 (7th Cir. 1993) (en banc), Wood v. Duff

‐ Gordon, 118 N.E. 214 (N.Y. 1917) (Cardozo, J.); Restatement (Second) of ContractsNo. 11

‐ 1112 49

§ 204 (1981). This is true of ERISA plans in their capacity as contracts. Singer v. Black & Decker Corp. , 964 F.2d 1449, 1452– 53 (4th. Cir. 1992). Such implicit terms are read into written

as well as oral contracts and thus coexist with the require

‐ ment that ERISA plans be “established and maintained pur

‐ suant to a written instrument,” 29 U.S.C. § 1102(a)(1), a re

‐ quirement that we have called “a long way toward a statute of frauds.” Frahm v. Equitable Life Assurance Society , 137 F.3d 955, 958 (7th Cir. 1998).
One of the implicit terms in every contract is the duty of good

‐ faith performance. Denil v. DeBoer, Inc. , 650 F.3d 635, 639 (7th Cir. 2011); Market Street Associates Ltd. Partnership v. Frey , 941 F.2d 588, 593–96 (7th Cir. 1991). It requires the per

‐ forming party, in this case the plan administrator, to avoid “tak[ing] deliberate advantage of an oversight by your con

‐ tract partner concerning his rights under the contract.” Id. at 594. A closely related principle is that “you cannot prevent the other party to the contract from fulfilling a condition precedent to your own performance, and then use that fail

‐ ure to justify your nonperformance.” Ethyl Corp. v. United Steelworkers of America, AFL

‐ CIO

‐ CLC , 768 F.2d 180, 185 (7th Cir. 1985). The plan in this case saved itself a considerable

sum of money because the plaintiff obtained surgery for his wife at a hospital that wasn’t in the provider network. The contractual duties that I have just described required the plan administrator to inform the plaintiff of his options if he inquired about them—and he claims he did. If so informed the plaintiff might have decided to move his wife to a hospi

‐ tal in the network. There was time, and it appears that there

was at least one hospital in range of Rush competent to per

‐ form the surgery. Whether the plaintiff and his wife would have exercised that option is critical to whether he can re

‐50 No. 11

‐ 1112

cover the additional $80,000 that he paid Rush for the sur

‐ gery. But it is an issue that awaits resolution on remand.
The Supreme Court’s decision in Massachusetts Mutual Life Ins. Co. v. Russell , 473 U.S. 134 (1985), does not rule con

‐ ventional principles of contract interpretation out of ERISA and so deny the duty of good faith performance of obliga

‐ tions created by an ERISA plan. It holds only that extracon

‐ tractual damages can’t be obtained in a suit for breach of a plan’s obligation, whether fiduciary or contractual, explicit

or implicit, to process claims in good faith. Concurring in the Singer case cited above, Judge Wil

‐ kinson expressed concern that allowing plan participants or beneficiaries to enforce implicit terms in ERISA plans would increase cost and uncertainty. 964 F.2d at 1453. I doubt that. The common law of contracts, a law that enforces implicit contractual terms, is a stable, largely uniform, and generally quite satisfactory body of law. One hears plenty of com

‐ plaints about the costs and uncertainty entailed by the litiga

‐ tion of other claims, but few about the costs and uncertainty entailed in enforcing claims of breach of contract. Judge Wil

‐ kinson cites no evidence in support of his fear that allowing general common law principles to inform litigation over al

‐ leged breaches of the terms of ERISA plans will cause “actu

‐ arial chaos.” Id

. at 1454. Following his advice would just cre

‐ ate pressure for an expansive interpretation of fiduciary ob

‐ ligation, as in the majority opinion in this case—and how is uncertainty reduced by substituting the equitable doctrine of fiduciary obligation for the common law of contracts?No. 11

‐ 1112 51

E ASTERBROOK , Circuit Judge , concurring in part and dis

‐ senting in part. I agree with the court’s unanimous disposi

‐ tion of the statutory

‐ damages issue and with Part II.A, which concludes that the controversy is live. I also join Part II.C of Judge Manion’s opinion, which demonstrates that the suit fails on the merits. I offer two additional thoughts.
First, I agree with Judge Posner that it would be best to apply contract principles. In Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101 (1989), the Supreme Court started with fiduciary principles drawn from trust law because the claims asserted there involved discretionary decisions by plans’ fi

‐ duciaries. ERISA says that “a person is a fiduciary with re

‐ spect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan

... or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.” 29 U.S.C. §1002(21)(A). The claims in this litigation do
not entail discretion in management or implementation; to the contrary, plaintiff asserts and the majority holds that Concert Health lacked discretion. Applying the principles of
contract law, perhaps informed by any specific doctrines de

‐ veloped in the law of health insurance contracts, would promote certainty and comparability between health care provided as a fringe benefit of employment and other medi

‐ cal coverage. Second, an approach such as the majority’s can make par

‐ ticipants worse off. They value the opportunity to obtain prompt oral advice about eligibility for benefits. Some par

‐ ticipants will lack ready (or any) access to online databases of providers or description of a plan’s benefits. Conditions of coverage may be hard to understand. See, e.g., Kenseth v.52 No. 11

‐ 1112

Dean Health Plan, Inc ., 722 F.3d 869 (7th Cir. 2013). And print

‐ ed lists of in

‐ network providers may be bulky and go out of date. Thus oral advice can be a boon to participants.
Yet oral exchanges often are imprecise. The representa

‐ tive must answer off the cuff, often with inadequate infor

‐ mation. The participant may misunderstand, misremember,

or dissemble about the content of the conversation when, years later, a question arises about who said what. Litigation will be one

‐ sided. James Killian asserts that particular things

were said; the representatives at the other end of the phone,

even if they could be identified, would not recall the conver

‐ sations.
Problems of memory and veracity could be addressed by recording everything and keeping the recordings for howev

‐ er long the statute of limitations lasts, though it might be hard to find a particular call in many thousand hours of oral exchanges. But the fact that immediate answers to vague questions will be imprecise, and occasionally inaccurate,
cannot be fixed by better record

‐ keeping. Under the majori

‐ ty’s approach, any inaccuracy— and any failure to be helpful by answering questions the participants should have asked, but didn’t—imposes liability on the plan, even if the ques

‐ tion is so vague that the telephone representative does not get its gist.
That legal rule will induce some, perhaps many, health

‐ care plans to take steps for self

‐ protection. One possibility would be to stop giving oral advice. Since that advice can be valuable, and usually is accurate, participants would be

worse off. A second possibility would be to give oral advice, pay up when errors occur, and cover that cost by reducing the benefits provided by the plan. Participants might notNo. 11

‐ 1112 53

welcome that approach either. Still another possibility would be to alert participants that no oral advice could be relied on. A plan might say something like: “Our web site has a data

‐ base of in

‐ network providers and details about which medi

‐ cal procedures are covered. If the online resource is insuffi

‐ cient, or if you need advance permission for a procedure, you may send us a letter or email; we will answer in writing, and you can rely on that response. We also offer telephonic advice and information but do not warrant its accuracy, and you use it at your own risk.” Would this approach help par

‐ ticipants? I doubt it. Perhaps my colleagues would hold that ERISA disallows telling participants that they can’t rely on oral advice. That would induce plans to close their telephon

‐ ic hotlines, a step sure to injure participants. Today’s decision will push employers and their plans’ administrators in that regrettable direction.54 No. 11-1112

M A N I O N , Circ uit Judge , wi th whom S Y K E S , Circ uit Judge , jo i ns, c oncurring i n part, dis senti ng i n part.
Susan and James Kill i an were understandably di straught when they learned i n earl y April 2006 that Susan had lung

ca ncer, that i t had spread to her brai n, and that t he br a in
tumors we r e i noperable. It i s also only natural that their thought s were focus ed on Susan’s health and fi ndi ng a doctor able t o oper ate and r emove the tumors, a nd no t on the ter ms of Susan’s health i nsu rance plan. And so the Kill i ans d id not i nqui re i n advance whether her d o ct o rs or Rush Uni ver si ty Medic al Center were w i thi n her health care n etwor k; b ecaus e i t turned out that they wer e no t , Susan i ncu rr ed li abi li ty of approx i mately $80,000 i n medi cal expenses. James beli eved Concert Health Plan Insurance Company (“Conce r t”) and Roy al Management, her employer and the plan admi ni strat or , should be li able for those expenses becau se when he called to i nform Concert that Susan was bei ng admit t e d for brai n surgery , the Concert repr esentatives di d not i nform hi m that the medi ca l prov i ders were out-of-network

. Accordi ngly, on August 22, 2007, on behalf of Susan’s e st ate, James fi led sui t again st Concert and Roy al Management under ERIS A for deni al of benefi ts, breach of fi duc ia r y d uty, and for statuto ry damages. In addi tion to statuto ry damag e s, James sought equi table relief in the form of payment for (or a di rection to pay), the outstanding medi cal bi lls owed the Rush providers.
Ov er the course of the last si x year s, the parties, the di stric t court, and thi s court ha v e expended si gni fi cant resources explor i ng t he scope of ERIS A’s fi duci ary obli gations and the network statu s o f the Rush prov i ders. Duri ng that tim e, the admi ni strat i on of Susan’s estate was completed and the estateNo. 11-1112 55

was closed and James i nheri ted Susan’s rights i n thi s li tigati on. The court was b elatedly notifi ed of thi s dev elopment and t he parties did not consi der i ts i mport , leaving the court to di rect the parties to fi le supp lemental bri efi ng on the quest ion of whether t he closi ng of Susan’s estate moot ed thi s appeal. In response, James reo pened the estate but “sole l y f or th e p u rp os e of probat i ng the ERIS A c lam and prosecuti ng the clai m i n the Di stric t Court and 7th Ci rcui t Court of Appeals.” R

. 5 8-2. The i ssu e, though, was never whe t he r James could conti nue to prosecute Susan’s ERIS A clai ms whi ch he i nheri ted i n hi s i ndi vidu al capac i ty. He clearly could— if the re l ie f sought would make a di fference to the legal i ntere sts of the parties. But i t won’t, a t l e a st for the deni al of benefi ts and breach of fi duc ia r y duty clai ms. Both those clai ms sought as relief payment of the outstandi ng medi cal bi lls. However , nei ther Susan nor her estate ever pai d those bi lls. Now that her estate i s closed for all pur p o se s e xcept prosecuti on of thi s case and the statuto ry tim e period for recov ering from a decedent (and James for that matter ) has pass ed, there i s no l o ng er any li abi li ty to the Rush prov i ders. Thus, wh ile an or der to pay t hose bi lls would benefi t thi rd-part y non-li tigants wh o no longer have a clai m again st the estate, i .e., the Rush prov i ders,

suc h relief would not make a di fference to the legal i ntere sts of Susan’s estate, si nce there i s no lon g e r a ny li abi li ty for those medi cal bi lls. What we have then i s an advis or y opin i on on the merits of the deni al of be ne fi ts and breach of fi duci ary duty clai ms becau se the asserted harm no longer exis ts. If thos e claim s were not moot , I would agr ee that remand would be appropr i ate on the deni al of benefi ts clai m, but that, for several

re asons, Susan’s breach of fi duci ary duty clai m c a n n ot s u c c e e d

.56 No. 11-1112

The statuto ry damages clai m, though, remain s a li ve cont r over sy becau se Susan’s entitlement to those damages now resi des wi th James , her benefi ci ary , and remand on that clai m i s appropr i ate. A ccor di ngly, I CONCUR IN PART AND DISS ENT IN PART.
I. BACKGRO UND
The en banc court recounts the sad facts i n thi s case. In bri ef, i n Februar y 2006, Susan Kill i an saw her prim ary care physi ci an because she was suf ferin g from persi stent headaches and a

severe cold. Her doctor or dered a CT scan , whi ch rev ealed that Susan had lung canc er t ha t had spread to her brai n. She was admi tte d to Delnor Communi ty Hospi tal for fi ve days, but was told that her brai n tumors were i noperab l e and she was di sch arg ed. Su sa n and her hus band James deci ded that she should seek a second opin i on an d they turned to Dr. Bonomi

. Dr. Bonomi had prev i ously tr eated Susan’s daughter as well as Susan’s fi ancé, both of whom unfortunately di ed of canc er. R. 115-3 at 28, 31.
After her release from Delnor, Susan sch eduled an appoi ntment wi th Dr. Bonomi for April 7, 2006

. Dr. Bonomi di rected Susan to fi rst meet wi th a neur o su rg eon, Dr. Loui s Barnes. Pr i or to Susan’s appoi ntments wi th Dr. Bonomi and Dr

. Barnes, James made no atte mp t to deter mi ne whether the d o ct or s were i n the PHCS Open Acces s Networ k, whi ch was the network appli ca ble to Susan’s health i nsu rance plan wi th Concert

. James testif i ed that he di d not know whether SusanNo. 11-1112 57

had made any calls or had rev i ewed the webs i te for a li st of network prov i ders . R.115-3 at 30–31, 121. 1

On April 7, 2006, Susan met wi th Dr. Barnes and he told her that o ne of her tumor s needed to be remov ed i mmedi ately o r she would be dead wi thi n fi ve days. Based on Dr

. B a r ne s’ prog nosi s, Susan deci ded to have the tumor remov ed. Whi le she was bei ng admi tte d to Ru sh Hospi tal, James telephoned Concert

. Although the en banc court sta t e s that James “fi rst called the ‘pro vider partici pation’ numb er li sted on the front of Mr s. K ill ian’s i nsu rance card,” Opin i on at 6, as di scu ssed i n

more detai l b e l ow

, th e recor d does not supp or t that conclu si on; rat her, the recor d shows that James placed two telephone calls
to Concert ’s cus tomer service/u tili zation rev i ew numb er. See infr a at 79–87. And when asked why he called Concert on April 7, James sai d twice i n hi s deposi tion tha t he called Concert to tell them Susan “was going to be admit ted to a hospi tal.” R.115-3 at 71–73.

Doctor s remov ed the brai n tumor on Apr il 10 and Susan

was released from the hospi tal o n April 12, 2006. R.77-5 at 55–56. She received addi tional outpatient serv i ces from Dr. Bonomi and atte mpt ed chemotherapy, but could not toler ate i t. In June 20 0 6, Susan was admi tte d to Rush for ni ne days to be treat ed for pneumoni a. She died two months later.

James was not i nsured under Susan’s health i nsuran ce pol i cy and was not 1
i nv ol v ed i n Susan’s deci sio n to enrol l i n the Co ncert he al t h c are opti on “S O35 Open Acce ss,” which used the PHCS Open Acce ss network. R.115 -3
at 15 –1 6, 19 –2 0. James also di d not know wh at i nfor mat i on Susan had

rece i v ed up on e nrol l i ng in the C oncer t pl an. R.115 -3 at 19 ; 1 38 –1 39

.58 No. 11-1112

After Susan’s surgery and prior to her d eath, Sus an began receivi ng bi l l s f ro m th e va ri ou s Rush prov i ders for outstandi ng balanc es relat ed to the brai n surgery

. In tot al, the Rush 2
prov i ders conti nued to bi ll Susan for approx i mately $80,000 i n medi cal expenses. Contr ary to the court’s statement t ha t Concert stated i t would not cover services at Rush, Opin i on at 8, Concert di d not deny Susan cover age for the var i ou s services relat ed to her brai n surgery at Rush; rat her, i t pai d those clai ms pursuan t t o the poli cy’s out-of-network formula. R.115-3 at 263, 270; R.41-18 at 1. In tot al, Concert pai d approx i mately $17,500 i n medi cal expenses relat ed to Susan’s surgery at Rush. R. 41-11 at 1, 2, 7. Mor eov er, whi le the providers conti nued to bi ll Susan for approx i mately $80,000-plus i n medi cal expenses, the gr eat di spari ty be t ween the amount pai d by Concert ($17,500) and the remain i ng amount owed by Susan (approximately $80,000) r e su l t ed not from an astoni shi ngly low percentage cover ed by the i nsu rance company for out-ofnetwork e x p e ns e s, but from the fact that the out-of-network 3
prov i ders charged a muc h hi gher rat e for their services than Concert beli e v e d was reasonable, that i s, the “maxi mum allowable fee.” Speci fi cally, C o ncert pai d out-of-network prov i d e r s for services render ed based on the Medic are Resource-Based Relative Value Scale. R.77-3 at 22; R.41-18 at 1. And unli ke i n-network prov i ders, out-of-network prov i ders

S p e c i f i call y, Susan conti nued to rece i v e b i l l s fro m Rush Uni v ersi ty, 2
Un iv er s it y An es t h es iolo g is t s , a n d C h i cago Institute of Neuro surgery. R .2 18

- 6 at 1

.

The Co ncert pol i cy covered 50 % of out- of -networ k expenses fo r hospi tal- 3
i za tio ns, sub

jec t to the max i mum a l l owab l e f ee. R.259 -5 at 3.No. 11-1112 59

had not agr eed to accept the i nsu rance company’s payment as full payment fo r services

. Rather , out-of-network prov i ders could continu e to bi ll a patien t at whateve r r ate they deemed appropr i ate, w hi ch, i n Susan’s case, resulted i n her owi ng the Rush providers approximately $80,000. 4

Susan could have avo i ded these hi gh out-of-pocket expenses had she opted for better cover age thro ugh a di fferent Concert health care plan offered by her employer , namely one whi ch used the PHCS-PP O network

. The Rush prov i ders were i n-network for the PHCS-PP O network

. R.115-3 at 250. But the Concert plan whi ch used the PHCS-PP O ne tw or k of p h ys i ci ans

w a s m or e e xp e n s i ve a n d w ou ld have cost Susan approx i matel y 50% more in premi ums . R.251 at 51; R.259-3 at 80. Obviousl y, when she selected the less expensi ve poli cy Susan di d no t know she would soon be di agnosed wi th late-stage canc er and that her preferr ed doctor s would be out-of-network

. At the tim e Susan enrolled i n the Concert Health Care Plan and selected cover age under the SO 35 Open Acce ss option, whi ch used the PHCS Open Acces s network of prov i ders, she

was i nformed of these reimb ursement prov i si ons. Speci fi cally, Susan r ecei ved a n e nrollment packet whi ch in clud ed, among other thi ngs, a Cert i fi cate of Insurance, a r e minder page, a “frequently asked questi ons” page, a document sum mari zi ng her employment benef it s, and her health i nsu rance card (a

Afte r l earnin g o f t he Kil l i ans ’ situati on, Co ncert di d wri te the Rush 4
pro v i ders on Susan’s be ha l f and requested tha t they not b i l l Susan fo r charges ab ove the rei mb ursement rate. R.7 7 -7 at 11

. The Rush pro v i ders, though, were not contractuall y obli gated to do so and apparently demurre d b ecause they co ntinued to b i l l Susan fo r the hi gher fe e amounts.60 No. 11-1112

copy of whi ch i s appended to the en banc co ur t ’ s opin i on). R.259-2–5. The Cert i fi cate of Insurance detailed Susan’s

cover age and, relev ant to thi s appeal, explain ed i n straightforward ter ms the di fference i n cover age for i n-network and outo f- ne twor k prov i ders and that i nsu reds were responsi ble for any charges above the maxi mum allowable fee, whi le stressi ng that “the choi ce of prov i der i s Your s.” R.77-3 at 5, 11–12. It also explain ed that i nsu reds could deter mi ne the network status of prov i ders by calli ng Concert or by checki ng on-li ne. R.77-3 at 5. Addi tionally, i t st re s s ed the requirement that i nsu reds notify Concert of any hospi tal admi ssi ons for “pre-certifi cati on” or “uti li zation” rev i ew, or i ncu r a $ 1 ,000 penalty. R.77-3 at 11. And fi nally, i t explain ed that pre-certifi cati on r e v ie w was a deter mi nati on of whether a medi cal service was medi cally

necess ary and that “[p]recertif i cati on of medi cal necess i ty i s sub ject to the li mi tations, exclusi ons, and prov i si ons of thi s certifi cate ... .” R.77-3 at 23.

W hil e the Cert i fi cate of Insurance was a comprehensi v e document, spann i ng fi fty-one pages, the e nr ollment packet i nclu ded mu ch more si mpli fi ed hi ghli ghts for i nsu reds, i nclu di ng a two-page “Employee Benefi t Summary” of the Concert Health Plan. R.259-5 at 2, 3. Thi s sum mary specified that the SO 35 Open Acces s network was the “PHCS Open Acces s” network

. Id

. It th e n sum mari zed the reimb ursement

ra te s f or vari ous services , both i n-network and out-of-netw or k, and i nformed i nsu reds that: “Non-Network services are sub ject to Maximu m Allowable F e e li mi tations. The Pati ent wi ll be responsi

ble for any charges ov er these li mi ts.” Id

. Another one-page, large -font sheet capti oned “REMINDER, PRE-CERTIFICATIO N IS NEEDED FOR THE FOLLO WINGNo. 11-1112 61

SERVICES ,” prov i ded a li st of eleven services requiri ng precertifi cati on, i nclu di ng “hospi tal admi ssi on.” R.259-5 at 9. And

a separ a t e one-page handout prov i ded a li st of i mport ant telephone numb ers and webs i te addresses, i nclu di ng both the PHCS webpage and telephone numb er and the Concert webpage and telep hone numb er. R.259-5 at 7. Fin ally, a onepage “Fr equently Asked Q uesti ons” sheet explai ned that
Conce r t Health Plan has partner ed wi th PHCS for your health plan. PHCS i s t he nati on’ s l e a di ng health care networ k. In or der to locate a prov i der in a s peci fi c region of the county, (si c),

s i m p l y g o t o t h e P H C S w e b s i t e ( WWW.PH C S .COM )

. You wi ll also have an optio n t o prin t out a “personali zed di recto ry ” based on the areas for whi ch you are look i ng for a prov i der.
R.259-5 at 8. Insureds were also di rected “t o confi rm wi th the network that the prov i der i s sti ll partici patin g at the location you have chosen” b y calli ng PHCS at 800-242-6679. Id. James , as admi ni strat or of Susan’s estat e, ev e nt ually sued Concert , and later , i n an amended complai nt, added Susan’s former employer, Ro ya l Ma n a ge m e n t. T h e a m e n d e d c om p l a i nt alleged three ERIS A clai ms: (1) deni al of benefi ts, (2) breach of fi duci ary duty, and (3) sta t utor y damages. The di stric t court gr anted sum mary judgme nt t o the defendants on all three clai ms and James , as admi ni strat or of Susan’s estate, appealed.

Duri ng the pendency o f the appeal, Susan’s estate was closed and James i nheri ted Susan’s laws ui t. James was then sub sti tuted i n as the plai nti ff. R.48-2. Thi s court di rected the62 No. 11-1112
parties to fi le supp lementa l bri efi ng on the questi on of whether the closi ng of Susan’s estate moot ed thi s li tigati on. In response, James r e o p e ned Susan’s estate “solely for the purpose of probat i ng the ERIS A clai m and prosecut i ng the clai m i n the Di strict Court and 7th Ci rcui t Court of Appeals.” R.58-2. He then requested that the court sub sti tute the estate back i nto the case. R.64-1 at 2.
The en banc court, sua sponte , deemed James ’s mot io n to sub sti tute hi mself i n hi s capac i ty as admi ni strat or of the estate

a s a motion to add hi mself i n that capac i ty, i n or der to allow James to conti nue to pursue thi s li tigati on b oth i n hi s i ndi vidual capac i ty and as admi ni strat or of Susan’s estate. Opin i on 20
at n.26; O pi ni on at 40. But whether James i s now p ro secu tin g t hi s case i n hi s i ndi vidu al capac i ty—hav i ng i nheri ted t he laws ui t—or i n his capac i ty as admi ni strat or of Susan’s estate, i s i rr elevant be ca use the underlyin g clai ms remain Susan’s breach of fi duci ary duty, deni a l o f benefi ts and statuto ry damages clai ms. The court conclu des that those ERIS A clai ms are not moot , statin g “there i s no questi on that the parties have a current, li ve di spute wi th both i mmedi ate and potent i al fu t ure consequences .” Opinio n a t 17. The court suggests four theor i es for why there remain s a live contro ver sy. First, the court r easons that the e st a t e may have already suf fered a concrete and redr essab le i njury by havin g ov erpaid so me medi cal bi lls. Opin i on at 17–18. But as di scu ssed below, James never arg ued

suc h a harm. O p inion at 69–70. Second, the court asserts that si nce Susan’s estate has been reo pened, the Ru s h clai ms “mi ght be pursued no w a g ai nst the estate.” Opin i on at 22. Thi s reasonin g i s wro ng for two r easons: (1) Susan’s estat e has notNo. 11-1112 63

been reo pened for p ur p o ses of allowi ng credi tor s to fi le addi tional clai ms again st the estate, but solely for the purpose of prosecuti ng thi s ERIS A acti on; and (2) as James stated i n hi s Supplemental Reply Memor andum: “ A ll clai ms again st the
estate are barred by the Illi noi s Probate Act’s two-year li mi tation period, 755 ILCS 5/18-12(b ).

... Thus , Rush Uni ver si ty and Susan Kill i an’s other prov i ders cann o t collect anythin g from her estate.” R.64-1 at 1. The court’s thi rd rat i onale for why thi s

case i s not moot , namely th a t James remain s di rectly and personally li able on Sus an’s medi cal bi lls, i s equally mi splac ed. Opin i on at 18. James ’s purpor ted li abi li ty i s unrelated to hi s status a s a benefi ci ary and thus Susan’s estate (or James , i ndi vidu ally as her benefi ci ary ), cannot pursue th e d e nial of benefi ts and breach of fi duci ary duty clai ms premi sed on James ’s unrelated di rect and personal li abili ty. And i n any event , James i s no longer li able to the Rush prov i ders becau se the fi ve-year statute of li mi tations for bri ngi ng sui t again st James unde r t he Illi noi s Fami ly Expense Act, 750 ILCS 65/15, has long si nce run. The court’s fourth rat i onale , t ha t “the possi bi li ty of meani ngful declarator y relief suppor ts an

exer ci se of jurisdi cti on,” i s also wrong becau se th e r e i s no declarator y relief that could affec t the legal int erests of the parties. Accordi ngly, as di scu ss e d below, Susan’s estate’s deni al of benefi ts and breach of fi duci ary duty clai ms are now moot

. The statuto ry penalty clai m, though, i s di fferent becau se that clai m entitles Susan’s estate to monetar y damages, whi ch Ja me s, as her benefi ci ary , i nheri ts and thus that clai m i s no t moot

. On the merits, after conclu di ng that Susan’s clai ms are not moot , the en ban c co ur t adopts, i n part, the panel deci si on i n64 No. 11-1112

Kill ian v. C on cert Health Plan (Killian I), 680 F.3d 749 (7th Ci r. 2012). I n t he panel decis i on i n Kill ian I , the court aff i rmed the di stric t court’s gr ant of sum mary judgment for Roy al Plan and Concert on the deni al of benefi ts clai m, but required the parties
to sti pulate concerni ng w h e ther the Rush prov i ders were i n the PHCS Open Acces s ne t wo rk

. Id. at 756 n.5. The panel also affi rmed sum mary judgment on the br e a ch of fi duci ary duty

c l a i m, but rev ersed and remanded the statuto ry da m a ge s c l a i m becau se the di stric t court err ed i n calculati ng the penalty and fai led to address one of James ’s arguments. Id. at 762–64. The

en banc court “adopt[s] the pane l ’ s reasonin g and conclu si on relat ed to the deni al of benefi ts and statuto ry penalti es i ssu es.” Opin i on at 3. The en banc court also agr ees wi th the panel that Roy al Plan and Concert were e n ti tl e d to s u m m a ry judgment on J a m e s ’s c lai m that the defendants breached their fi duc i a ry d u ty by fai li ng to prov i de Susan wi th a sum mary plan descri ption, becau se James could not show that the lack of a sum mary plan descri ption c aused an y harm. Opini on at 13. However , the en banc court holds t hat rev ersal on the bre a ch of fi duci ary duty clai m i s appropr i ate becau se a rat i on a l fi nder of fact could conclu de that Concert had a fi duci ary duty to i nform James that the Rush prov i ders were out-of-network duri ng the April 7, 2006 telephone conver sati ons; that i t breached that duty; and that t hat breach resulted i n harm to James. Opi ni on at 39.
If Susan’s breach of fi duci ary duty clai m was not moot , the defendants wo uld nonetheless be entitled to sum mary judgment on the merits. A breach of fi duci ary duty clai m premi sed

on the April 7, 2006, telephone calls fai ls, first becau se James wai ved any arg ument that th e defendants breached their fi duci ary duty b y not i nformi ng h i m, when he called, that theNo. 11-1112 65

prov i ders were out-of-network

. And the defendants di d not wai ve thi s waiver. Second, even i f thi s theor y had not been wai ved, t here was no breach o f fidu ci ary duty becau se James di d not put Concert on notic e that he wa s inquiri ng on the prov i ders’ network status as i n-network or out-of-ne t work prov i ders. Accordi ngly, even i f thi s clai m i s not moot , the di stric t court’s deci si on gr anti ng t he defendants sum mary judgment on the b reach of fi duci ary duty should be affi rmed. The deni al of benefi ts clai m i s li kewi se moot , but i f i t were not, at thi s stage remandi ng to allow the parties to su bmi t a st i pulati on concerni ng the Rush prov i ders’ network status

seems most expedient. I f they ar e unable to do so, the di stric t court should resolv e the di spute. Fi nally, I agr ee that r emand

on the statut o r y penalty clai ms i s appropr i ate, as the panel deci si on held and as ad opted by t he en banc court.

II. DISCUSSION

A. Susan’s b reach of fi duci ary duty and deni al of benefi ts clai ms are moot becau se th e Kill i ans never pai d the Rush prov i ders and there i s no longer a legal obli gation
to pay those bi lls. Thus , there i s no l onger any legal harm to S usan ’s estate.

Art i cle III , § 2 of the Consti tution gr ants federal c ourt s the

a u th or i ty to a d

ju di cate only “actual ongo i ng contro vers i e s

. ” St

. John’s United Churc h of Christ v. City of Chicago , 502 F.3d 6 1 6, 626 (7th Ci r. 2007 ) (q uo t ing Honig v. Doe , 484 U.S. 305, 317 (1988))

. “For a case to be justic i able, a li ve contro ver sy mus t conti nue to exis t at all stages of rev i ew, not si mply on the date the acti on was i ni tiated.” Brown v

. B ar tholomew Consol. School Corp. , 442 F.3d 588, 596 (7th Ci r. 2006). Thu s, “ [i] t has been66 No. 11-1112

fi rmly establi shed that an appeal should be di smi ssed as moot when, by vir t ue of an i nterv eni ng event , a court of appeals
cannot gr ant any effectual relief whatever i n favor of the appellant.” A.B. ex rel. Kehoe v. Hous. Auth. of South Bend , 683 F

. 3 d 844, 845 (7th Ci r. 2012) (i nternal quotat i on omi tte d). Mor eov er, “[a]lthough nei ther party has urged that thi s case i s moot , resolution of the questi on i s essenti al i f federal courts are to func tion wi thi n their consti tutional sphere of a ut ho rity.” Nor th Carolina v. Rice
, 404 U.S. 244, 246 (1971). Accordi ngly, “moot ness , lik e standi ng, i s always a threshold jurisdi cti onal questi on that we mus t address even when i t i s not rais ed by the parties.” Wernsin g v. Thompson, 423 F.3d 732, 745 (7th Ci r. 2005) (i nternal quot ation omi tte d).
Under thi s framewo r k , Susan’s deni al of benefi ts and breach of fi duci ary duty clai ms are moot

. At the tim e that James , as admi ni strat or of Susan’s estate, fi led sui t, Susan’s
estate allegedly owed approx i mately $80,000 in me d i cal bi lls
to the Rush prov i de r s. Kill ian I , 680 F.3d at 758. Sinc e then, Susan’s estat e ha d been closed. Actually, Susan’s estate had been closed i n A ugust 2011— p r io r to both the or al arg ument and the release of the panel’s deci si on in K i l lian I —but the
court wa s not i nformed of thi s develo pment unti l Sept ember 2012, when James fi led a motion to sub sti tute hi ms elf as plai nti ff. R.48-2. In that moti on, James explain ed that the only
asset of Susan’s estate was the under lyin g ERIS A clai m, that Susan’s estate had been closed, and that that asset had been
tr ansf err ed to hi m. Att ached to that mo tion were the state court order s conf i rmi ng these facts. Id . Thi s court gr anted the motion and s ubs tituted James as the plai nti ff.No. 11-1112 67

B a s e d on these develo pments, thi s court d i re c te d th e p a rt i e s to fi le supp lemental bri e fin g o n the questi on of whether the closi ng of Susan’s estate moot ed thi s li tigati on. Speci fi cally, the
court di rected the parties to di scu ss “wi th particu larity whether Mr

. Kill i an ret ai ns any i ntere st i n obtaini ng relief and whether the relief sought by Mr

. Kill i an wi ll make a di fference
to hi s legal i ntere sts.” R.53. In r esponse, James reo pened Susan’s estate “solely for the purpose of p ro bati ng the ERIS A claim and prosecuti ng the clai m i n the Di stric t Court and 7th Ci rcui t Court of Appeals.” R.58-2. He then requested that thi s court sub sti tute the est a t e back i nto the case. R.64-1 at 2. The
court deemed thi s a r e q ue st t o add hi m i n hi s capac i ty as admi ni strat or of Susan’s estate, leaving James to pursue thi s li tigati on i n that capac i ty a nd i n hi s i ndi vidu al capac i ty. Opin i on 20 at n.26; Opini on at 40.
The court asserts James ’s reo peni ng of the esta t e r e solves the moot ness questi on beca u s e th e unpai d medi cal bi lls “mi ght be pursued now again st the estate.” Opin i on at 22. Accordi ng to the court: “In li ght of the reo peni ng o f t he estate, the contention i n Judge Ma nio n’ s di ssen t

... that there i s no possi bi li ty of recov ery of the medi cal bi lls from the estate, and there fore no ap parent harm to the estate, i s not demonstrably

corr ect.” Opin i on at 20. But the estate was reo pened “solely for the purpose of probat i ng the ERIS A clam and prosecuti ng the clai m i n the Di stric t Co urt and 7th Ci rcui t Co urt o f Appeals.” R.58-2. Thus, the estate i s not open for purposes of allowi ng thi rd-part y credi tor s, suc h as the Rush prov i ders, to seek

recov ery from the estat e for medic al expenses.

Nor i s t here any possi

bi li ty that the Rush prov i ders could sti ll reo pen the estate and recov er on the unpai d medi cal bi lls.68 No. 11-1112

As James stated i n hi s Supplemental Reply Me m or a n d u m : “All clai ms again st the estate are barred by the Illi noi s Probate Act’s two-year li mi tation period, 755 ILCS 5/18-12(b )

... Thus , Rush Univer si ty and Susan Kill i an’s other prov i ders cannot collect anythin g from her estate.” R.64-1 at 1. James i s corr ect. Section 18-12(b ) prov i des that “[u] nless sooner barred under sub section (a) of thi s Section, all clai ms whi ch could have been barred under thi s Section are, i n any event , barred 2 year s a ft e r decedent’s death, whether or not lette rs of offi ce are i ssu ed upon the estate of the decedent.” 755 ILCS 5/18-12(b ). “The fi li ng of a clai m wi thi n the peri od s peci fi ed by secti on 18-12 i s mandatory .” In re Estat e of Hoheiser , 424 N.E.2d 25, 28 (Ill. App. Ct. 1981). And the fai lure to fi le a claim wi thi n thi s statuto ry period i s a bar to recov ery , even i f the executor had p ersonal knowledge of the clai m. Id

. Furt her, “where a legal clai m should have been, but was no t , filed again st an estate wi thi n the statuto ry period, relief wi ll not be accorded by the appli cation of equi table prin ci ples.” In re Estat e of Ito , 365 N.E.2d 1309, 1311 (Ill. App. C t. 1977). I n shor t, “[n]o ex cepti on to the fi li ng period may be e ngrafte d by judi ci al deci si on.” Id. In fact, “[a] probat e court cannot authorize an admi ni strat or to pay a clai m after the clai m has been barred from payment under the
statute. To authorize payment under these cir cu mstanc es would i n effect nulli fy the prov i si on i n the statute.” Messenger

v. Ruthe r f ord , 225 N.E.2d 25, 94 (Ill. App. Ct. 1967) (i nternal ci tation omi tte d).

In thi s case, Susa n d ied i n August 2006 owi ng the Rush prov i ders approx i mately $80,000 i n unpai d medi cal bi lls. Susan, though, never pai d those medi cal expenses and Illi

noi s’s two-year li mi tations period now bars any atte mpt by theNo. 11-1112 69

Rush prov i d e rs to reo pen and collect on those unpai d bi lls

. 5 Wi thout exception. See supra at 68. And the probat e court lacks authority even to authorize Ja me s, as admi ni strat or , to pay those clai ms. Accordingly, th e r e i s no possi bi li ty that Susan’s
estate r emai ns li able on the unpai d medi cal bi lls.
The court also reasons that thi s case i s not moot becau se the
estate has alre ady suf fered a conc r e t e and r edressable injury, namely that the Kill i ans were i njured by ov erpay i ng medi cal bi lls repr esenti ng c o-pay, c oin surance, and annual deducti ble amounts, whi ch would have been lower had the services been obtained from an i n-networ k prov i der. Opin i on at 17–18. However , James has never clai med, i nclu di ng in hi s response to t he court’s request for supp lemental bri efi ng, that they

ov erpaid any of th e me d i cal prov i ders becau se of the defenThe cour t rel i es on Schloeg l v. Nardi (In re Estat e of Perrine ), 23 4 N.E.2 d 55 8, 5
56 1 (Il l

. App. Ct. 19 68 ), fo r the pro posi tio n tha t “[ i ]n Il l i noi s, the fact tha t an estate i s cl osed may , b ut do es not necessaril y, precl ude cred i tor s fro m b ri nging cl aims aga i nst i t.” Op i ni o n at 20 -2 1. The cour t notes tha t sub sequent c as e s hav e di stingui shed Schloeg l , b ut tha t none of those cases “re jec ted i ts concl usio n tha t a cl aim may b e b ro ught aga i nst an estate i f the time fo r b ri nging such cl aims has not expire d.” Opini on at 21

. Schloeg l i s not rel eva nt to the case at han d b ecause Schloeg l i nv ol v e d a c l ai m b ro ught withi n b oth the governing statu te of l i mitatio ns and the pro b ate’s l i mitatio n peri od . But i n this case, the Rush pro v i ders d i d not fi l e a clai m withi n the pro b ate act’s two-ye ar l i mitatio ns peri od , as requir ed b y Secti on 18 -2

. Il l i noi s l aw i s cl ear tha t Secti on 18 -2 “i mposes add itional time constrai nts fo r maki ng c ertain cl aims aga i nst a dece dent’s estate.” Vaug hn v. Spea k er , 5 3 3 N.E. 2d 88 5, 88 8 (Il l

. 19 88 ) (emphasis i n or i ginal)

. An d a “co urt has no power o r j u r i sd i cti on to entertain a peti tio n aga i nst an estate after the
statu tor y peri od has passed.” In re Marri age of Epst een , 791 N.E.2d 175, 185 (Il l . A pp. C t. 2 00 3)

.70 No. 11-1112

dants’ purpor ted ERIS A violati ons. Rather , James has always mai ntai ned that th e ha r m Susan’s estate suf fered as a result of the breach was that Susan i ncu rr ed about $ 80,000 i n unpai d medi cal bi lls.
The court’s thi rd rationale for wh y thi s appeal i s not moot i s that “Mr

. Kill i an’s fi nanci al affai rs are burdened wi th real

unc ert ai nty. ...” Opin i on at 22. Here, the court notes that there i s a “suf fi ci ently real possi bi li ty that the addi tional debts may

come Mr

. Kill i an’s way,” Opin i on at 20, and fi nd s “ M r. Kill i an’ s personal li abi li ties on Mr s. Kill i an’s debts” relev ant. Opin i on at 24 n.28. Th e re are two problems wi th thi s reasoni ng. First, Susan’s estate brought thi s li tigati on t o o btai n relief

on Susan’s ER ISA clai ms. The court acknowledges that the clai m is “ Mrs. K illian’ s claim ,” but adds that James “i nheri ted i t, and, i n any event , the consequence of the resolution of the di spute, whatever i t may be, falls to hi m alone.” Opin i on at 19. But James di d no t i nheri t Susan’s obli gation to pay Rush; Susan’s estate ne v e r p a id those bi lls; and those debts di d not reduce the assets that James i nheri ted—ther e were none. Thus , the alleged harm di d not somehow flow to James as part of the probat e pro cess

. What the court i s d o ing i s conflati ng the legal i ntere sts of Susan’s estate (wh i ch James i nheri ted), and James ’s unrelated i ndiv i dual i ntere sts, reasonin g that “the di spute i n thi s case alwa y s h as been one between Mr

. Kill i an and the defendants

ov er hi s wi fe’s cover age and their fami ly’s resulti ng li abi li ty on t hir d -party medi cal debts.” Opin i on at 18. Whi le the di spute underlyin g thi s li tigati on may have always been one b etweenNo. 11-1112 71
James and the defendants, th e li tigati on has always been 6 between Susan’s estate and the defendants. Or as the court explain ed “[t]he estate i s and has always been a cons tr uct to

res o l v e t hi s di spute.” Opin i on at 19. Accordi ngly, only those ha rms whi ch an estate may li tigate are relev ant. Thi s is a questi on of standi ng whi ch c on c e rn s th e f undam ental consti tut io na l li mi ts of thi s court

. Perry v. Sheahan , 222 F.3d 309, 31 3 (7th Ci r. 2000). W ha t t he n are the harms an estate may li tigate? The admi ni strat or of an estate may prosecute clai ms on behalf of a deceased plai nti ff’s estate whi ch ulti mately benefi t “the hei rs and any other clai mants to the estate, suc h as hi s credi tor s.” See Anderson v. Romero , 42 F.3d 1121, 1123 (7th Ci r. 1994). It i s tr ue that should t he e st a te prev ai l on the deni al of benefi ts and breach of fi duci ary duty clai ms, James , who is t he estate’s benefi ci ary , wi ll benefi t. But he wi ll not benefi t as a benefi ci ary

. Thi s poin t i s clear i f one consi ders what would happen i f James

were not a benefi ci ary of Susan’s e st ate. James ’s purpor ted li abi li ty for the medi cal expenses due the Rush prov i ders i s based on the I l li noi s Fami ly Expense Act. The Illi noi s Fami ly Expense Act prov i des that spouses are jo i ntly and severally li able for each other ’s medi cal expenses whether or not they

are li ving tog ether or separately

. Mercy Ctr. for Health Care Serv.

In stating tha t the di spute i n this case has always b een b etwe e n J am e s 6 and the defe ndant s, the co urt i ncorr ectl y po sits that “the cr edi tor s appear to hav e pursued the path of l east resi stan ce and b i l l ed Mr. Kil l i an di rectl y.” Opini on at 18 –1 9. There i s no evidence i n the reco rd, though, to suppor t this

ass umptio n; i n fact, all of the b i l l s, and l ater the v ar i ous demand l etters fro m col l ecti on agencies, wer e addressed to Susan Ki l l i an, no t James

. See, e.g., R.77- 4, R.77- 3 at 5 9.72 No. 11-1112

v. Le m ke , 5 57 N.E.2d 943, 963–63 (Ill. App. Ct. 1990). If James

were not a benefi ci ary or hei r of Susan’s estate (maybe becau se of a di vo rce sub sequent to the prov i si on of medi cal expenses), James would sti ll “benefi t” by the estate obtaini ng an or der to pay the Rush prov i ders given that he would have jo i nt li abi li ty under the Act. But the benefi t to James would not be because

o f his status as a benefi ci ary of the estate. Thus , the court is wrong to rely on “persi sti ng unc ert ai nti es concerni ng t he future li abi li ty of the estate and i ts benefi ci ary ” to fi nd thi s case not moot, O pi ni on at 24, because there i s no f uture li abi li ty of James qua benefi ci ary

. And the co urt’s other explanation for why the e st ate can seek a remedy for a di rect and personal ha r m to James , namely that James stands before thi s court a s “hus band,” i s i ncorre ct. Opin i on at 20 n.26. James may now stand before thi s court i n hi s i ndi vidu al capaci ty, but the clai ms remain Susan’s und e rlying breach of fi duci ary duty and deni al of benefi ts clai ms. Id. 7

The statuto ry penalty clai m i s a di fferent matter

. That clai m allows for moneta ry damages. Consequently Susan’s estate (and James i ndi vidu ally) can conti nue to li tigate that clai m on behalf of Jame s becau se as a benefi ci ary James i s entitled to receive those statuto ry damages.

A more di ffi cul t questio n i s whether an estate has stand i ng t o l i t i gate a 7 b reach of contract cl aim sol el y fo r the b enefi t of a third -party b enefi ci ary of tha t contract. The def endants argue tha t James i s not a b enefi ci ary of the Co ncert Health Plan and there fo re the estate cann ot l i tigate on his b ehalf. The cour t, though, do es not rel y on a thi r d

- p arty b enefi ci ary theory to justi fy the estate’s stan di ng to l i tigate a purpo rted harm to James. And such a theory sure l y woul d no t extend to a b reach of fi duci ary duty cl aim.No. 11-1112 73

The entire premi se that there i s a "suf fi ci ently real possi bi li ty that the addi tional d e bt s ma y come Mr

. Kill i an’s way" i s also wrong. In response to thi s court’s request for supp lemental bri efi ng, James i denti fi ed only o ne basi s for personal l i abi li ty—t he Illi noi s Fami ly Expense Act, 750 ILCS 65/ 1 5 , whi ch as noted above cr e a t e s jo i nt and several li abi li ty for

s p ou s e s ’ m edi cal expenses. Becaus e the Illi noi s Fa m i l y E xp e n s e A ct d o es not have i ts own statute of li mi tations, the catch- a l l fi ve-year l i mi tation period appli es. See 735 ILCS 5/13–205 (2010); Pope v. Kaleta , 234 N.E.2d 109, 114 (Ill. App. Ct. 1967). Susan’s brain surger y at Rush o cc ur red i n A pril 2006 and y et the Rush prov i ders have not i ni tiated li tigati on again st James , so, now—2013—any clai ms by them again st James wo ul d be tim e-barred. Thus , any li abi li ty, and in tur n har m, t ha t James might have suf fered no longer exis ts

. Accordi ngly, even i f i t 8

were appropr i ate to consi der a harm to James in asses si ng whether Susan’s estate’s deni al of benefi ts and breach of fi duci ary duty clai ms are moot , there i s no suc h harm to James

. James may well wi sh that the Rush doctor s receive addi

tional compens ation for their services and may desi re vind i cation for the wrong he percei ves. But the test for mo o t ness “i s whether the relief sought would, i f gr anted, make a di fference
to the legal i ntere sts of the parties (a s di sti nct from their psyches , whi ch mi ght remain deeply engaged wi th the merits

The court notes tha t li mitatio ns peri od s may b e tol l ed “i f the party to b e 8 charged mak es a partial paymen t, or new wri tten pro mise to pay.” Opini on at 21 –2 2 (ci tatio ns omi tted). James turned over duri ng di scovery the do cuments r el ated to the unpaid Rush bil l s. These d ocuments showed no partial payments and no wri tten pro mise to pay.74 No. 11-1112

of the li tigati on).” Air Lin e Pilots A s s 'n
, Int’l v. UAL Corp. , 897 F.2d 1394, 1396 (7th Ci r. 1990). And i n t his case, the relief sought, namely payment of th e outstandi ng medi cal bi lls, no longer makes a di fference to the legal i ntere sts of Susan’s estate becau se t he estate i s not li able for the outstandi ng medi cal bi lls; the Rush cr e d it o rs no longer have a right to payment from the estate; and James i s no longer li able to the Rush prov i ders.

Fin ally, the court reasons that thi s case i s not moot becau se of “the possi

bi li ty of meani ngful declarator y relief

... .” Opin i on at 23. The court, thoug h, does not ex plai n what su ch relief would be, other than suggest that i t could be somethi ng that relieves James of hi s personal li abi li ties on Susan’s clai ms. Opin i on at 24 n.28. But as di scu ssed above, the est a t e ca nno t seek relief i n favor of James for hi s di rect and personal li abi li ty and i n any event there i s no suc h potent i al li abi li ty. Thus , there i s no declarator y relief for the purpor ted deni al of benefi ts and breach of fi duci ary dut y cl a i ms that could affec t the legal i ntere sts of Susan’s estate, i t s cr e d i tor s, or i ts benefi ci ary qua benefi ci ary

. 9

In sum , Susan’s estate sued the defendants allegin g a deni al of benefi ts and br each o f fidu ci ary duty under ERIS A, asserti ng as the harm unpai d medi cal bi lls t otaling approx i mately $80,000. But now there i s no remain i ng li abi li ty on those clai ms

I bel i eve the reco rd mak es cl ear tha t these cl aims are moo t. However, i f 9 there were any questio n of moo tness, the appr opr i ate cour se of actio n woul d b e to remand to the di stric t cour t fo r the reco rd to b e cl arif i ed on the questio n of moo tness, witho ut the cour t addressi ng the meri ts of the cl aims. See Ri ce , 4 04 U. S. at 248

.No. 11-1112 75

for Susan’s estate, for cre d itor s, for James qua benefi ci ary , or

even for James i ndi vidu ally. These facts moot Susan’s estate’s clai m becau se “there i s no possi ble relief whi ch the court could

or der that would benefi t the party seeki ng i t.” In re River West Plaza -Chicago, LLC , 664 F.3d 668, 671 (7 t h C i r. 2011) (i nternal quotat i on omi tte d ) (emphas i s added). Thi s court has held clai ms pendi ng on appeal are moot i n analogo u s s i tu a ti ons

. For i nstance, when a restituti on or der was pai d by ano t he r party whi le the appeal was pen di ng, this court held that the appeal

was m oot becau se “[w ]e cann ot r eli eve [a party] of an obli gation that has already been ext i ngui shed by another party .” United States v. Balint , 201 F.3d 928, 936 (7th Ci r. 2000). See also Wegscheid v. Local Union 2911, Int’l U n i on, United Auto., Aeros p ac e & Agr. Implemen t Work ers of Am. , 117 F.3d 986, 990 (7th Ci r. 1997) (“[ A ] su it cannot be mai ntai ned i n a court created under Art i cle III of the Constituti on, however egr egious the defendant’s conduc t, unles s the deci si on would affec t the
t a ng ible i ntere sts of the sui t. A deci si on of thi s appeal, given that the sui tor s have o btai ned all the relief that they need to prot ect themselves

... could not have suc h an effect.”) (emphasi s i n or i gin al). Here, t he obli gation to pay has been ext i ngui shed by oper ation of law and not by an act of another party , but the end result i s the same. Th e r e i s no longer a legal obli gation to pay and thus a court or der would not bestow on Susan’s estate, i ts credi tor s, or i ts benefi ci ary qua benefi ci ary , a legal benefi t. See Stevens v. Hous. Auth. of South Bend, Ind. , 663 F.3d 300, 306 (7th Ci r. 2 0 1 1 ) (“A case is moot when a plai nti ff

no long e r ha s a legally cogni zable i ntere st i n the outcome.”). Accordi ngly, the deni al of benefi ts and breach of fi duci ary duty clai ms are now moot , but the statu t o r y penalty clai m76 No. 11-1112

remain s a li ve contro ver sy becau se i t allows for money damages.

B. James wai ved any br each of fi duci ary duty clai m premi sed on the two April 7, 2006, telephone calls to Concert and the defendants di d not wai ve that wai ver

. Before the di stric t court, James arg ued that the defendants had breached their fi duci ary duty to hi m by fai li ng to prov i de

a sum mary plan descri ption. The di st ric t court gr anted the defendants sum mary judgment on thi s clai m. James then fi led

a mo t io n to reconsi der, arg ui ng for the fi rst tim e that the d e f e n d a n ts also breached their fi duci ary duty by not i nformi n g hi m of the out-of-network status of the Rush prov i ders duri ng hi s April 7, telephone conver sati ons wi th Concert

. The di stric t court deni ed James ’s motion to reconsi der, holdi ng that i t was too late to rais e an arg ument premi sed on the April 7 telephone

conver sati ons. By not presentin g a tim e l y arg ument to the di stric t court premi se d o n the April 7 telephone calls , James wai ved any arg ument that the defendants breached their fi duci a r y duty based on those telephone calls

. Pub l i s h e r s Res., Inc. v. Walk erD av i s Publ’ns
, Inc., 762 F.2d 557, 561 (7th Ci r. 1985) (holdi ng that a l i tigant who fai ls to rais e an arg ument i n opposi tion to

a proper ly rais ed motion for sum mary judgment wi l l no t be permi tte d to rais e that same arg ument later , ei ther i n a motion for reconsi derat i on or on appeal). The en banc court, though, holds that the defendants wai ved James ’s wai ver by fai li ng toNo. 11-1112 77

assert wai ver i n thi s court

. Opin i on at 1 1 n.22. But the 1 0 defendants had no reason to assert wai ver i n thi s court becau se James di d not develo p a breach of fi duci ary duty arg ument i n hi s a p p ellate bri efs premi sed on the April 7 telephone calls

. Therefore , the defendants di d not wai ve K i lli an’s wai ver

. Mor eov er, whi le a party can wai ve a wai ver by failin g t o rais e i t, the wai ver doctrine i s “desi gned for our own prot ection as muc h as that of an opposi ng p art y, and there fore need not be asserted by a party for us to invoke it.” United S tat es v. Hassebrock, 663 F.3d 906, 914 (7th Ci r. 2011). Thi s case presents such a ci rcums tance—one where, even i f the defendant s a r e deemed t o have not asserted wai ver , the court sh o ul d

. James li tigated thi s case f or year s bef or e the dis tr i ct court and never d e velo ped a breach of fi duci ary duty arg ument premi sed o n the two telephone calls to Concert

. Consequently, nei ther James nor Concert develo ped the reco r d concerni ng those telephone calls

. And not only di d the parties not develo p the

recor d concerni ng those telephone calls , they di d not identi fy for the court the relev ant port i ons of the recor d relat ed to those telephone calls

. Thi s appeal i nvolv es a recor d of ov er 4,000 pages and the only way thi s court can proper ly and fai rly addre ss a breach of fi duci ary duty clai m premi sed on those
two telephone calls i s for the court—wi thout t he ai d of the parties—to tedious ly si ft thro ugh the rec o r d to understand

Co ntrary to the cour t’s ass erti on tha t t he pa nel had or i ginall y fo und n o 1 0 waiver, Opi nio n at 11 n.22 ., Killian I b ypass ed the i ssue of waiver becau se Kil l i an l ost on the meri ts of his cl aims. See Killian I , 6 8 0 F .3d at 75 7– 58 (stating “we wil l b ypass th e wa i v er issue alto gether and wil l address b oth of James’s argum ents onl y on the meri ts”).78 No. 11-1112 exactly what happened (or r ather, what inf erences the recor d could reasonably supp or t). That rev i ew, as di scu ssed at length below, leads me to conclu de that even absent wai ver , James
cannot prev ai l on a breach of fi duci ary duty clai m premi sed on the two t elephone calls

. But thi s court should not undertake

suc h a rev i ew i n the fi rst i nstance and should hold James to hi s wai ver

. C. James cannot prev ai l on a breach of fi d uc ia ry duty clai m premi sed on the two April 7, 2006, telephone calls
to Concert becau se James made both calls fo r precertifi cati on of Susan ’s hospi tal admi ssi on and not to i nqu ir e o n the network status of the Rush prov i ders. And the enrollment packet Susan received clearly i nformed i nsu reds of the r e imbu rsement rat es for outof-network prov i ders and ho w to i nqui re on a provider’s network status. Furt her, nothin g Jam e s said to the Concert representatives put them on notic e that he

was concerned about the Rush prov i ders’ network
status. Accordi ngly, Concert di d not have a fi duci ary duty to i nform James that the Rush prov i ders were outof-network

. Even i f Susan’s breach of fi duci ary duty clai m wer e not moot , the clai m fai ls on the merits. “ A cl a im for breach of fi duci ary duty under ERIS A requires the plai nti ff to prov e: (1) that the defenda nt is a plan fi duci ary ; (2) that the defendant breached i ts fi duci ary duty; and (3) that the breach resulted i n harm to the plai nti ff.” Kens eth v. Dean Health Plan, Inc. , 610 F.3d 452, 464 (7th Ci r. 2010). The en banc court holds t hat a reason-No. 11-1112 79

able fi nder of fact could fin d t hat the defendants breached 1 1 their fidu ci ary duty to Susan by not i nformi ng James that the Rush prov i ders were o ut -of-network and that thi s breach of duty harmed James

. Opin i on at 36–37. For the reasons detailed below, I di sagree.
1. James di d not call the PHC S dedi cated prov i der partici pation telep ho ne numb er on April 7, 2006. Rather James called Concert twi ce at th e sa me numb er, whi ch was li sted three tim es on S us an’s i nsu rance i denti fi cati on card, twi ce for uti li zation

rev i ew and once f or cus tomer service.
The en banc court notes that to rev i ew Susan’s breach of fi duci ary duty clai m t he cour t mus t focus on the two April 7, 2006 telephone calls, Opi ni on at 28, so I begi n there as well.

In di scu ssi ng t he fi rst telephone call James made on April 7, 2006, the en banc court states that James called the “prov i der partici pation” numb er li sted on the front of Susan’s i nsu rance card. Opin i on at 6. The panel deci si on also assu med that to be 1 2

Because § 50 2( a)(3) auth or i zes onl y “equi tab l e rel i ef” there i s no ri ght to 1 1

a jury tri al. McDouga ll v. Pioneer Ranch Ltd. Partnership , 49 4 F.3d 57 1, 57 6 (7 th Ci r. 20 07 ); Nat ’l Sec. Sys., Inc. v. Iola , 70 0 F.3d 65 , 79 n.10 (3 d Ci r. 20 12 ); Cox

v. Keystone Carb on Co. , 8 61 F.2 d 3 90 , 3 93 (3 d Ci r. 1 98 8)

.

The en banc cour t also states tha t “[ T]he Kil l i ans di d not contact Co ncert 1 2 b efo re meeting with Dr. Bonomi because their plan to see Dr. Bo nomi fo r a

seco nd opi nio n di d not depe nd on wh e t he r he was i n Mrs. Kil l i an’ s

ne twork.” Opini on at 6 (emphasis added)

. James, though, di d not testif y why he had not contacted Co ncert b efo re Susan’s appoi ntment, and, i n fact, stated tha t he di d not know whether or not Susan had contacted Co ncert or (co ntinued. ..)80 No. 11-1112

the case, whi le not ing t hat no matter whi ch numb er James called, there was no breach of fi duci ary duty. Kill ian I , 680 F.3d at 759. But, as di scu ssed b elow, by i nferring that James called the PHCS dedi cated prov i der numb er, both the panel deci si on

a nd the en banc deci si on reflect a mi sun derstandi ng of t he

recor d, whi ch is understandable given that James wai ved t he arg ument and the parties never briefed the i ssu e or prov i ded

recor d supp or t for their di fferi ng view s on whi ch t e l e p hone numb er James call ed.
Contr ar y t o the panel deci si on and the en banc court’s conclu si on today , the recor d does not su p p o r t a reasonable inference that James called the PHCS dedi cated pro v ide r partici pation numb er. In fact, i n hi s Rule 56.1 S t a t e ment of Facts, James never clai med he called the PHC S d e d i cated prov i der li ne, but merely stated he “called one of th e 8 00 numb ers on the card” and that he “called another numb er o n Susan’s i nsu rance card.” R.266 at 2. Nor di d James clai m i n hi s affi davit that he fi rst called the dedi cated prov i der li ne, statin g i nstead: “I called one of the 800 numb ers on the card.” R.266-2
at 2. Then, i n hi s d e posi tion testim ony, James fi rst testif i ed: “[t]here w ere two numb ers on the medic al card. I beli eve o ne

was for

— I believe one of them was for deter mi nati on of eli gib i li ty of benefi ts and one was for admi ttance or a cus tomer service numb er. So I beli eve I called the cu st o mer service numb er fi rst and later on I called back

... .” R.115-3 at 71-72. As the deposi tion conti nued, though, when asked again about the

( ...c onti nued) 1 2 reviewed the network pro v i der l i st on the Co ncert web site pri or to meeti ng with Drs. B arnes an d Bo nomi . R.11 5- 3 at 3 0– 31 , 1 21

.No. 11-1112 81 telephone calls , and speci fi cally whi ch numb er he called fi rst

on April 7, James stated “I beli eve i t was the top numb er,” the [800-242] -6679 numb er

. R.115-3 at 117–18. (The numb er at the 1 3

ver y top of the card i s the PHCS dedi cated prov i der partici pation numb er.) And that when he called the second tim e he “beli eve[d] i t was t he second numb er,” the cus tomer service numb er, 866-818-3106. R.115-3 at 118. James ’s deposi tion testim ony was thus contradic tor y concerni ng whi ch numb er he i ni tiall y called on April 7

. Thi s

co ntradic tion i s not fatal to James ’s case, given that thi s i s

sum mary judgment and the recor d mus t be view ed i n the li ght
most favor able to the non-movin g party

. But i t does show that Ja mes i s unc lear about what numb er he actually called o n April 7, whi ch i s most li kely why he di d not as sert i n hi s Rule 56.1 St atement of Facts that he called the PHCS dedi cated prov i der lin e. R. 266 at 2.
Whi le James ’s unc ert ai nt y mi ght not doom hi s case, hi s testim ony about t he telephone calls makes clear that i t was imp ossi ble for hi m to have fi rst called the PHCS dedi cated prov i der-li ne numb er. Speci fi cally , i n explain i ng i n hi s deposi tion what tr anspi red on April 7, James stated that when he called back the second tim e, “I talked to a woman nam ed Mar i a and I sai d somethi ng about, ‘I’m tr yin g to get confi rmation that we are goin g to b e—my w i fe i s going to be admi tte d
to Rush.’ Again, I sai d—she just sai d, li ke she knew who I was, she sai d, ‘Oh, you mean S t. Luke’s,’ and she laughed and she

The depo siti on tran sc r i p t r eads “8 24 -6 67 9,” R.115 -3 at 11 8, which i s 1 3 presumab l y a typographic al erro r be c au se the card l i sts the numb er fo r PHCS as 24 2- 66 79

.82 No. 11-1112

sounded li k e sh e wa s talking to the person next to her. That there were two di fferent phone numb ers but they were si tting
next t o each other

. I b eli eve they w ere 800 num bers. She sai d, ‘Yo u mean Rush Presbyter i an.’” R.115-3 at 72. James reiterat ed thi s po int i n hi s affi davit, statin g when he called back the second tim e, “[w]he n M aria heard me say ‘St

. Luke’s’ she laughed and sai d to a colleague, ‘It ’s the guy from St

. Luke’s.’” R.87 at 2.

It i s i mpossi

ble for thi s scen ario to have tr anspi red as James recounted i f he had called the PHCS dedi cated prov i der li ne becau se, as the recor d e st abli shes , Concert does not run the d e di cated prov i der li ne. The PHCS network does. R.115-3 a t 200. The only way for the second oper ator to qui p t o the cowork er si tting next to her that i t was the guy from “St

. Luke’s” would be if

James had call ed the Concert numb er both tim es, and i n t he i nterim, the two Concert repr esentatives were di scu ssi ng James’s fi rst c all. And the n umb er for Conc ert was l ist e d on Susan’s i nsu rance i denti fi cati on card three tim es, twi ce on the front of the card, once for cus tomer se r v ice and

once for uti li zation rev i ew, and once on the back of the card for uti li zation review. T hus , given Jam es’s own testim ony, i t was i mpossi ble for James to ha v e fir st called the PHCS li ne dedi

cated to deter mi ni ng prov i der partici pation st a tus. He mus t have in stead called Concert both t i mes. Admi tte dly, the recor d i s not well develo ped on thi s poin t and fo r a ver y si mple reason: James never clai med that he called to deter mi ne Rush’s network status and i nstead testif i ed expr essly and clearly i n hi s deposi tion that he called to i nformNo. 11-1112 83

Concert tha t Susan was bei ng admi tte d to the hospi tal

. See 1 4 infr a at 87– 9 2

. And James never develo ped a breach of fi duci ary duty clai m before the di stric t co ur t premi sed on these telephone calls ; hi s menti on of them i n hi s appellate bri efs was also fleeti ng. Ac cordin gly, there was no reason for Concert to develo p an arg umen t about these telephone calls , to conduc t further di s c ov e ry c on c e rn i n g the telephone calls , or to poin t the
court to the port i ons of the recor d relat ed to these te l ephone calls and the management of the dedi cated prov i der li ne by PHCS. Thus , James ’s wai ver prej udi ced Concert becau se i t could have soug ht addi tional di scovery , whi ch mi ght more clearly negate James ’s current arg ument that he called the PHCS d e d i cated prov i der li ne to deter mi ne Rush’s network
status. 1 5

The c our t states that whil e James used the word “p readmissi on” i n his 1 4 d e p o si tio n when tel l i ng the attorneys the purpo se of his call , he di d no t testif y t ha t he tol d the repre sentat i v es tha t he was call i ng fo r preadmi ssio n.” Opini on at 36 n.45

. The cour t then states tha t the i nteractio n with the repre sentat i v es i nclud ed “i nfor mi ng the repre sentat i v e of his l ocati on a nd tel l i ng the repre sentat i v e o f the nee ded surgery.” Opi nio n at 36 n.45 . It i s true that James nev er te stif i ed that he u sed the technical term “pre admissio n” when talki ng to the repre sentat i v es. But he di d testif y tha t he tol d them: “S usan i s goi ng to b e admitted” ; “I’m tryi ng to get conf i rmatio n tha t we are goi ng to b e—my wif e i s goi ng to b e admitted to Rush ”; “she i s goi ng—they wan t to admit her b ecause we already deter mined the
tumor had to come of f” ; “I said she was b ei ng admitted to the hospi tal and they were goi ng to do the surgery

... Brai n surgery.” R.115 -3 at 71 –7 2, 12 4.

For i nsta nce, duri ng James’s depo siti on, the def endant’s attorney ask ed 1 5 where he made the two tel ephone call s fro m, a scertained th ey w ere made fro m a c el l phone, tha t James stil l uses tha t cel l phone, and confi rmed the (co ntinued. ..)84 No. 11-1112

In fact, t his entire di scu ssi on aptly i llus tr ates why the wai ver doctrine i s also desi gned for the court’s own prot ecti on. Through o ut t he panel and en banc deci si ons, the opin i ons contradic tor i ly state that Jam e s’ s fi rst call on April 7 was to Concert and to the dedi cat e d prov i der li ne. See Kill ian I , 680 F.3d at 752, 757, 759–60; Opin i on at 6, 29, 34–35. But i f the fi rst call was made to the PHCS dedi cat e d p ro vider li ne, then the fi rst call could not have been made to Concert bec ause, as the

recor d does establi sh, the PHCS network oper ates the 800 numb er that indi vidu als can call to deter mi ne i f a prov i der i s i n the caller’s network . R.115-3 at 200. 1 6

The en banc court si desteps the i ssu e by statin g that Concert has never di sputed the fact tha t Ja me s’ s fi rst call was to the dedi cated prov i der li ne and the second call was to the Concert

( ...c onti nued) 1 5
carri er. R.115 -3 at 15 2– 53

. The de f e nd an ts coul d hav e sub poe naed the tel ephone reco rds to confi rm t he t el ephone numb er J ames ca l l ed on Apri l 7, 20 06 , b ut nev er di d. But they had no reason to do so b ecause James nev er cl ai me d t hat he call ed to deter mine network statu s or tha t the tel ephone call s served to estab l i sh a separate b reac h o f f i d uci ary duty cl aim. The def endants coul d also hav e attempted to obtai n an affi dav i t fro m the repre sentat i v es who fi el ded James’s call s to further estab l i sh tha t they came i nto the same call center.

Co ncert cann ot b e held l i ab l e fo r a b reach of fi duci ary duty b ased on the 1 6
actio ns of a non-fi duci ary l i ke PHCS. See Kens eth , 61 0 F.3d at 46 5 (explai ning tha t “[ f]i nding tha t p l an admi nistrator s may b reach a fi duci ary duty

v i cario usly through the actio ns of a non-fi duci ary woul d v i tiat e our

r equire ment tha t an ERISA cl aim fo r b reach of a fi duci ary du t y mu st be

ass erted aga i nst plan fi duci aries” ) ( i nternal quotatio n omi tted).No. 11-1112 85

cus tomer service li ne. Opin i on at 7 n.17. B ut Concert di d. Duri ng or al arg ument, Concert ’s couns el stated that James di d
not call the dedi cated prov i der li ne numb er. The en banc court challen ged the a t t o rney on thi s poin t several tim es, and after

r e a l i zi ng the en banc court’s confus i on, Concert ’s atto rney explain ed why, given James ’s testim ony, i t was i mpossi ble for James to have called the dedi cated prov ider-li ne numb er: Concert and PHCS Networ k are two di sti nct entiti es, each wi th

se parate 800 numb ers, separate physi cal locations , a nd di fferent employe e s. B e caus e thi s was never an i ssu e before, Concert never rais ed i t before. A nd be cause i n hi s Rule 56.1 St atement of Facts James never asserted that he had called the dedi cated prov i der li ne, there was nothin g to di spute. R.266 at 2.
Our rev i ew of sum mary judgment or ders requires us to view all reasonable i nferences i n the li ght most favor able to the

non-mov ing party

. But “i f the factual context render s the clai ms asserted by the party opposi ng sum mary j ud g ment i mplaus i ble, the party mus t ‘come forward wi th more persuasi ve ev i dence to support t hei r clai m than would otherwi se be

necess ary .’” McDonnell v. Courni a, 990 F.2d 963, 9 6 7 (7th Ci r. 1993) (quot ing Ma tsu shita Elec. Indus. Co., Ltd. v. Zeni th Radio Corp ., 4 7 5 U.S. 574, 587 (1986))

. The factual context lai d out above render s James ’s recollection of fi rst calli ng the dedi cated prov i der li ne i mpossi

ble. Rather , give n hi s testim ony, James

mus t have called the same Concert cus to m e r s e rv i c e / u ti l i zation numb er t wi ce on April 7. 1 7

The cour t respo nds tha t the reco rd do es not estab l i sh whether C oncer t 1 7 (co ntinued. ..)86 No. 11-1112

The cour t incor rectly assu mes that James fi rst called the PHCS dedi cated prov i der li ne. And that ass um p t i on i s the lynchpi n to the en banc court’s conclu sio n that a reasonable fi nder of fact could fi nd the defendants had a fi duci ary duty to i nform James tha t th e Ru sh prov i ders were out-of-network

. See Opin i on at 28 (“Because t his li ne was dedi cated to i nformi ng benefi ci aries whether prov i ders were i n ne t work , Concert knew (or at the ver y least, should have known) that benefi ci aries wo ul d call thi s li ne to deter mi ne a prov i der’s network status.”); Opin i on at 33 (“Gi ven hi s earlier telephone conver sation, a reasonable tr i er of fact certainly could conclu de that any further i nformation as to whether the prov i de r s were i n M rs. Kill i an’s n e t wo r k would have been pr ov i ded i n t he course of thi s conver sati on reg ardin g the authorizati on of the particu lar procedure.”); O p inio n at 34 (“It would be reasonable to i nfer
t hat thi s [sec ond] repr esentative knew that Mr

. Kill i an had
atte mpted t o d eter mi ne whether ‘St

. Luke’s’ was i n Mr s. Kill i an’s network duri ng Mr

. Kill i an’s prior call to the numb er for deter mi ni ng prov i de r p art i ci pation.”) ; Opin i on at 35 (“[T ]he seco n d re p re s e n ta ti ve ’s c om ments suggest that she was

aware of the earlier call to the network prov i der nu mb e r

. ” ). But becau se the recor d does not supp or t a reasonable i nference that James called the dedi cated prov i der li ne, that cannot serve

as a basi s for i nferring that James was calli ng to deter mi ne the network status of the prov i ders. And as di sc us sed below,

( ...c onti nued) 1 7 sha red faci l i tie s or empl oyee s with PHCS and therefo re we cann ot ass ume tha t they di d not. Opini on at 35 n.45

. B u t i t i s not reasonab l e to i nfer tha t two separate l egal entiti es shar e f ac i l i tie s or empl oyee s, ab sent some evidence tha t they do . A nd there i s none i n this case.No. 11-1112 87
Ja me s di d not call Concert on April 7 to deter mi ne the R us h p r ov i ders’ network status, but, as he testif i ed, he called becau se Susan wa s being admi tte d to the hospi tal and “you had to call for pr eadmi ssi on.” R.115-3 at 72–73.

2. Jame s ca l led Concert twi ce on April 7, 2006, to i n f orm Concert that Susan was bei ng admi tte d to th e hospi tal, as required by the i nsu rance poli cy’s precertifi cati on prov i si ons. James di d not call to i nqui re about the network status of the Rush prov i ders and nothin g J a m e s s a i d would put the Concert telephone repr esentatives on notic e that James was concerned about the pr ov i ders’ networ k status.
The en banc court conclu d e s that a reasonable tr i er of fact could conclu de that James called Concert to deter mi ned whether the Rush prov i ders were i n Susan’s network , Opin i on at 30, and that “Concert was aware (or, at the ver y least, that i t should have been aware) that Mr

. Kill i an was atte mpti ng to deter mi ne whether Rush and the physi ci ans who wer e about to per form surger y on M rs. Killi an were w i thi n Mr s. Ki lli an’s network .” Opin i on at 28. I di sagree. First, the recor d does not supp or t the conclu si on that James called Concert to deter mi ne whether the Rush prov i ders were i n Susan’s network

. In fact, i n hi s deposi tion Jam e s hi mself negates any suc h i nference—twi ce. After sum mari zi ng the first
t elephone call, James stated: “So that was my reason of th e phone call to t e l l t he m she was going to be admi tte d to the hospi tal. And we neve r deter mi ned anythin g. She sai d—I88 No. 11-1112

beli eve she sai d, ‘Gi ve me a call back.’” R.115-3 at 71. Second, 1 8 after dis cus si ng bot h telephone calls, the defendants’ attor ney asked James : “What was i t that prompte d you to call on April 7th?” James responded: “Wh at pro mpted me to call? Th e fact that she was going to be admi tte d to a hospi tal and the fact that you had to call fo r preadmi ssi on.” R.115-3 at 72–73. When 1 9

Whil e acknowled ging tha t James testif i ed tha t he and the C o nc e r t 1 8

re p re s en t a t iv es “never deter mined any thing” duri ng th e fir s t t el ep h on e c a ll, the en banc cour t then states tha t James “al so testif i ed tha t, at the end of the
two call s, he b el i eved tha t Mrs. Kil l i an’ s sur g e r y woul d b e covered

‘ [b ]e c a u s e n ob od y ever said these [pro v i ders] are out- of -netw or k .’ ” O p in ion
at 30

. However, contrary to the cour t’s statem ent, James nev er testif i ed tha t “at the end of the two call s, he b el i eved that Mrs. Ki l l i an’ s surgery wo uld b e co v ered .” Opini on at 30 . Rather, duri ng James’s dep osi tio n, James was ask ed why he b el i eved, as attested to i n his affi dav i t, “that Susan’s medi cal b i l l s woul d b e covered b y Co ncert Health Plan and [why he] had no reason to b el i eve they woul d no t b e covered .” R.115 -3 at 13 5. To tha t questio n, James respo nded: “Be cause nobody ever said these are out- of

- ne twork. They are out- of -po cket expenses tha t you are goi ng to hav e to i ncur. You see enough peo pl e, yo u think so meb od y woul d hav e said s omethi ng.” Id

. The excha nge conti nued: “Q: At no time di d any of the treating physici ans

or hospi tals tel l you tha t they were out- of -networ k? A: No .” Id

.

The cour t states tha t “M r. Kil l i an testif i ed tha t, i n mak i ng the se c o nd 1 9 tel ephone call , he was call i ng ‘fo r preadmi ssio n,’ as he was i nstructed to do b y M r s. Ki l l i an’ s i nsuran ce card.

... Taking these facts i n the l i ght most fav or ab l e to Mr. Ki l l i an, a reasona b l e tri er of fact coul d concl ude tha t Mr. Kil l i an made the seco nd call to obtain the requir ed ‘certi fi catio n,’ or ‘UTILIZA TION REVIEW,’ fo r his wif e’s surgery.” Opini on at 31 (emphasis added)

. The reco rd i ndic ates otherwi se. As just q u ot ed , a fter di scussing both tel ephone call s, Jam es w as ask ed “[w]hat was i t t hat prompted you to ca l l

on Apr i l 7 t h? ” R.115 -3 at 7 2– 73

. James respo nded “[ t]he fact tha t she was g o i ng to b e admitted to a hospi tal and the fact tha t you had t o c al l f o r (co ntinued. ..)No. 11-1112 89

asked who told hi m you had to call for pr eadmi ssi on, James stated “I believe I re ad i t on t he card.” R.115-3 at 73. 2 0 Signi fi cantly, James never stated i n hi s deposi tion, or i n the affi davit that he filed i n thi s case, that he called Concert on April 7 to deter mi ne whether the Rush prov i de r s were i nnetwork

. Had that been the purpose, or even a purpose of the call, James ’s atto rney could (a nd would) have asked James whether he had called on April 7 to also d e t e r mine the Rush prov i ders’ ne t work status. But hi s atto rney di d not, even though i n hi s complai nt James speci fi cally alleged that he “called C o nc e rt Health Plan Insurance Company to confi rm that Rush Uni ver si ty was a network prov i d e r un der the Concert Health Pl a n (or Roy al Management Cor p. Health Insurance Plan) .” R

. 1 1 9 -2 at 10. Thus , even though James alleged i n hi s complai nt that he ca l l e d t o confi rm the Rush

( ...c onti nued) 1 9 preadmi ssio n.” Id

. Mo reo v er , as noted ab ove, i n di scussing the first tel ephone call , James stated “[ s]o tha t wa s my r e as on of the phone call to tel l them she was goi ng to b e admitted to the hospi tal.” R.115 -3 at 71

. Acco rdi ng to James’s own testimo ny, he ma de b oth call s fo r the sam e purpo se—b ecause S u san was b ei ng admitted to the hospi tal and you needed to call fo r pre admissio n.

The do cuments p ro v i ded to Susan al so cl early l ai d out the i mportance 2 0 of i nfor ming Co ncert of hospi tal i za tio ns. James, who was not covered b y the i nsuran ce and had not reviewed any of the enro l l ment i nfor ma t i on Susan rece i v ed, knew this fro m the i nsuran ce card and also b ecause he and Susan had jus t g o ne t hrough the sam e pro cess when Susan had b een admitted to Del nor hospi tal. R.1 15 -3 at 26 3– 64

.90 No. 11-1112

prov i ders’ network status, when i t came tim e to come forward wi th proo f to supp or t that allegation, James remain ed si lent

. 2 1

“The purpose of sum mary judgment i s t o ‘pi erce the pleadi ngs and to asses s the proo f i n or der to see whether there i s a g enui ne need for tr i al.’” Mat sushita Elec. Indus. Co., Ltd. v. Zeni th Radio Corp., 475 U.S. 574, 587 (1986). James presented no evidenc e that he called Concert on April 7, 2006, to deter mi ne the network status o f t he Rush pro vider s a nd he easi ly could have made su ch a statement i n hi s affi davit or deposi tion testim ony. Becaus e “[a] non-movin g party can not si mply rest

on i ts allegation wi t ho ut any si gni fi cant probat i ve evidenc e tendi ng to supp or t the complai nt,” id. at 249 , t he co urt i s wrong to i nfer that James called to deter mi ne the Rush prov i ders’ network status when he had the oppor tuni ty to say he di d

so for that reason, but di d not; and i n fa ct stated a di fferent purpose when as ked, under oat h, for the purpo se of the call.
Secon d , even i f James sub jectively i ntended to deter mi ne the network status of th e R us h prov i ders when he called Concert on April 7, the Concert repr esentatives had no reason to k now that that was a purpose of James ’s A pril 7 telephone calls

. In di scu ssi ng the April 7 exchanges, James explain ed that he told the re p r e se nt atives that “Susan i s going to be admi tIn his depo siti on, James also testif i ed tha t pri or to her admi ss i o n at 2 1 Del nor, Susa n had a CAT scan at a faci l i ty i n St. Charles a nd th at he n ever call ed Co ncert to deter mine i f the faci l i ty was i n network; he di d not know whether Susan had c al l ed. R.115 -3 at 12 0. He also di d not know whether Susan had call ed to de t e r mi ne Del nor’s network statu s. R.115 -3 at 40

. In fact, i t ap p e ar s t hat some of the do ctor s at Del nor were not i n Susan’s network. R.115 -3 at 11 4.No. 11-1112 91
ted”; “I’m tr yin g to get confi rmation tha t we are going to be—my wi fe i s going to be admit t e d to Rush”; “she i s going—they want to a d m i t h e r b e c ause we already deter mi ned the tumor had to come off”; “I sai d she was bei ng admi tte d to t he hospi tal and they were going to do the surgery

. ... Brain surgery .” R.115 -3 a t 71-72, 124. Nothing James sai d duri ng these conver sati ons put the Concert repr esentatives on n otice that a purpose of hi s call was to learn the network status of the Rush prov i ders. Ra t he r, a reasonable repr esentative would beli eve that James telephoned Concert because Concert required i nsu reds to notify i t of hospit a l admi ssi ons—si nce that was what James told the telephone repr esentatives. As James sai d, i n his own wor ds: “I sai d she w as bei ng admi tte d
to the hospi tal and they were going to do the surgery

. ... Brain surgery .” Under these ci rcum st ances , i t i s not reasonable to expect the repr esentative to have “i nstructed Mr

. Kill i an that she was unabl e to locate an entry i n her system for ‘St

. Luke’s’ and t hat she could make no repr esentations at tha t tim e as t o whether the pr ov i der was i n-network.” O pi ni on at 31. 2 2

The cour t’s reasoni ng that “[ t] he f i rst Co ncert repre sentat i v e’s attempt 2 2

to l ocate ‘S t. Luke’s’ sugg ests tha t s he w as awa re o f hi s need to dete rmine Rush ’s network sta tus,” Opini on a t 35, i s also mispl aced. To document an i nsured’s hospi tal admissio n, Co ncert woul d need to reco rd the nam e of the hospi tal a nd Concert’s a ttempted to loc ate “S t. Luke’s” th eref or e does not suggest tha t the repre sentat i v e was awa re of James’s need to deter mine the network st at us. The cour t also reasons tha t Co ncert “shoul d hav e known tha t b enefi ci aries such as Mr. Kil l i an woul d b e c al l i ng this l i ne [the
customer service/ util i za tio n review numb er] to deter mine whether certai n pro v i ders were i n their network.” Opini on at 32

. But tha t sam e numb er was given fo r util i za tio n review and customer service. Opini on at 32

. Thus, (co ntinued. ..)92 No. 11-1112

3. Kens eth v. Dean Health Plan, Inc. , 610 F.3d 4 5 2 (7 th Ci r. 2010), i s not analogo us to the Kill i ans’ si tuation. In Kens eth , the i nsu red speci fi cally asked whether an upcomi ng surgery woul d be cover ed under her i nsu rance poli cy and was told by a repr esentative of the i nsu ran ce co mpany that i t would be, but the i nsu rance company later deni ed co v erag e. The Cert i fi cate of Insurance i n that case was ambi guous

on whether the re was cover age and fai led to i denti fy

a means by whi ch a partici pant could obtain an authoritative deter mi nati on on a cover age questi on. The Cert i fi cate also i nvited partici pants to call

cus to me r service wi th cover age questi ons but di d
not warn them that they could not rely on any advic e they received. Kens eth I , 610 F

. 3 d at 469–78. Here James di d not ask the Concert representatives any questi ons, but merely i nformed them that Susan

was bei ng admi tte d to t he hospi tal. And Susan’s Cert i fi cate of Insurance was clear on the di fferent levels of reimb ursement for i n-network and out-ofnetwork prov i ders and on how to deter mi ne the network status of a prov i der.

I n ho l di ng that a reasonable fi nder of fact could conclu d e that the defendants breached their fi duci ary duty to Susan by

( ...c onti nued) 2 2
Co ncert repre sentat i v es coul d expect to be t ol d of hospi tal admissio ns or ask ed questio n on any topi c regardi ng the health i nsuran ce pl an, and there i s no reason they woul d automaticall y i nfer tha t a call er to tha t numb er was seeki ng to d etermi ne the networ k status o f a pro v i der.No. 11-1112 93

not i nforming James duri ng the April 7, 2006 telephone calls that the Rush pro viders were o ut-of-network, t he court r eli es ext en siv e ly on Kens eth v. Dean Health Plan, Inc. , 610 F.3d 452 (7th Ci r. 2010). B ut i n doin g so, the court separates the language o f Kens eth from the facts i n that case.

In Kens eth , the plai nti ff had undergone a ve r t ica l banded gastr oplasty (“VBG ”), often co l l o qui ally refer red to as a “stomach-s tapli ng,” i n 1987. Id. at 457. Year s later , as a compli

cati on of the VBG, Kenseth began t o suffer from gastr i c st e no sis , whi ch in turn caus ed her “to exper i ence a var i ety of ali ments,” i nclu di ng severe aci d reflux, ero si on of the esophagus, pneumoni a, and severe hai r loss. Id

. To address these problems, Kenseth underwent an end os c op i c p ro cedure whi ch i ni tiall y r esolved t he problem. Id. at 458. But after i t r ecurred, Kenseth saw a bari atr i c surgeon, Dr. Huepe nbecker, who recommended that Kenseth “undergo a Roux-en-Y g astric bypass p r ocedure as a longer -term soluti on to the compli cations .” Id.

Pri or to the surgery , Kenseth con ta c te d h e r h e a l th i n s u ra n ce company, Dean Health Plan, to deter mi ne whethe r the surgery

wo ul d be cover ed by i nsu rance. Id. at 459. The Cert i fi cate of Insurance encourages partici pants to do so, statin g: “If you are

uns ure i f a service wi ll be co v e r e d, please call the Customer Ser vic e Department

... prior to havin g the service perfor med.” Id. at 458. Kenseth spoke wi th a cus tomer service repr esentative, Maureen Detmer, and “aver red that she told Detmer she would be havin g ‘a reconstr uct io n of a Roux-en-Y stenosi s, [si c]’ and when Detmer asked her t o ex plai n the nature o f the surgery , Kenseth told her ‘i t had to deal wi th the bott om of the esophagus because of a l l t he aci d reflux I was having.’” Id. at94 No. 11-1112

459-60. After chec kin g wi th her supervis o r , Detmer advis ed Kenseth that the procedure would be cover ed by he r i nsu rance, sub ject to a $300 copayment. Id. at 460. Based o n these

assu rances, Kenseth underwent the surgery on Decem ber 6, 2005. Id.
The day after the surgery , Dean (wh i ch under i ts poli cy was

n ot bound by or al repr esenta ti on s c on c e rn i n g c ov e ra ge ) d e n i e d

cover age for Kenseth’s surgery and all associ ated services based on two prov i si ons i n Kenseth’s health i nsu rance poli cy. First, the polic y li sted non-covere d services as “[a] ny surgic al
tr eatment o r hospi talizati on for the tr eatment of morbid obesi ty.” And in t he “General Exclus i ons and Li mi tations” pr o v isions was an exclusi on for “[s] erv i ces and/or supp li es relat ed to a non-covere d benefi t o r ser vic e, deni ed refer ral or prior authorizati on, or deni ed admi ssi on.” Id. at 4 57. Becaus e compli cati ons f ro m Ke n s e th ’s e a rl i e r VBG surgery necess i tate d Kenseth’s Roux-en-Y surgery , Dean conclu ded that the 2005 surgery was not cover ed; i t si mi larly conclu ded that there was

no cover age for a second hospi tal stay necess i tate d by compli

cat i ons of the 2005 surgery

. Kenseth was left wi th appr o x imately $78,000.00 in m edi cal bi lls.
Kenseth sued, allegin g clai ms under state law and under ERIS A for breach of fi duci ary duty and equi table estoppel. The di stric t court gr anted Dean sum mary judgment and on appeal thi s court rev ersed on the breach of fi duci ary duty clai m, statin g:
As we detail below, the facts would permi t the factfi nder to conclu de that Dean breached the obli gation of lo y a l t y i t owed to Kenseth byNo. 11-1112 95

prov i di ng her wi th plan documentati on that was

unc lear as to cover age for her surgery , by i nviti ng her and other partici pants to call i ts cus tomer service r epresentat i ves wi th questi ons about

cover age but omi tting to warn callers that they
cannot rely on the answ ers they are given, and by fai li ng to i nform partici pants how they mi ght obtain answ ers from Dean that they could rely upon. Id . at 464.

A s thi s sum mary of Kens eth makes clear, the Kill i ans’ situati on now befor e us is nothing li ke Kens eth

. In Kens eth , the i nsu red called and asked whether there would be cover age for

a speci fi c surgi cal procedure. Here James called and i nformed Concert th a t S us a n was bei ng admi tte d to the hospi tal and made no i nqui ry about the Rush prov i ders’ network status or the reimb ursemen t rat es for the medi cal services

. In Kens eth , the i nsu rance agent, after chec kin g wi th her superv i sor,

err oneously stated that the procedure the plai nti ff asked about would be cover ed. But after the o p e r a t ion, the i nsu rance company deni ed cover age. Here the i nsu ran ce co mpany di d
not make any repr esentations to James concerni ng whether the Ru s h p ro vi d e rs w e re i n
- n e tw or k or out-of-network and di d not deny cove rag e for Susan’s brai n surgery

. In Kens eth , the certifi cate was ambi guous concerni ng whether the Roux-en-Y surgery was a cover ed procedure. Wi th Susan, the certifi cate of i nsu rance was clear concerni ng: (1) the reimb ursement rat es pai d to i n-network and out-of-network prov i d e r s; (2) an i nsu red’s responsi

bi li ty for any expenses above the maxi mum allowable fee for out-of-netw o r k p ro viders; (3) the need to96 No. 11-1112

i nqui re on the network status o f t he prov i ders ei ther via
t e lephone or on-li ne; (4) an i nsu red’s right to choose any prov i der they wi shed; and (5) an i nsu red’s obli gation to notify C on c e rt of a n y hospi tal admi ssi ons for pre-certifi cati on that th e procedure was medi cally necess ary

. In Kens eth , thi s court held that the i nsu rance co mpany had a duty to di scl ose to callers that they c ould not rely on repr esentations made by agents of the i nsu rance company that a medi cal procedure was cover ed. That duty t o d isc lose was di rectly relat ed to the questi on Kenseth asked and whi ch the i nsu rance company answ ered, namely whether surgery to perfor m a Roux-en-Y was cover ed by the ins ur ance poli cy. See Kens eth, 610 F.3d at 472 (the fi duci ary exposes i tself to li abi lit y for the mi stakes that plan repr e sentatives mi ght make i n answ ering questi ons on that subject ) (emphas i s added)

. Here, the i nformation that the Concert repr esentatives prov i ded James (i .e., that he could go ahead wi th whatever had to be don e a nd that a hospi tal

2 3 admi ssi on for brai n surgery was “okay ”) concerned precertifi cati on and whether the procedure was medi cally

necess ary

. James ’s statement that Susan was bei ng ad mi tte d

2 4

In di scussing the “go ahea d” given James, the cour t states tha t James was 2 3

not warned “that the ‘go ahea d’ was not to b e understoo d as an auth or i za
tio n.” Opini on at 30

. But the “go ahea d” was an authori za tio n of the onl y thing which needed to be auth or i zed—a hospi tal admissio n. Co ncert di d
not need to auth or i ze treatment b y out- of -networ k pro v i ders, as “the choi ce of pro v i der i s [the i nsured’s.]” R.77 -3 at 5, 11 –1 2.

The Certi fi cate of Insuran ce explain e d wh at Co ncert woul d do upon 2 4

rece i v i ng noti ce of a hospi tal admissio n, stating i t woul d adv i se the i nsured “i f Preservice Rev i ew and Precer tif i catio n of the treatment pl an i s requir ed” (co ntinued. ..)No. 11-1112 97

for brai n surgery and Concert ’s “okay i ng” of that procedure as

me d ica lly necess ary , were unrelated to the questi on of the
netwo rk status of the prov i ders

. And fi nally i n Kens eth, the 2 5 i nsu red was not told how to d e fi ni tely deter mi ne whether there was covera ge

. H e re , i n s u re ds were told how to deter mi ne i f a prov i der was i n-network or out-of-network , i nclu di ng by calli ng Concert or the PHCS prov ide r l ine or going on-li ne. Kens eth i s therefor e di sti ngui shab le.
Notwiths tandi ng th e se stark di fferences between Kens eth

a nd t he facts of thi s case, the en banc court relies on several pass ages i n K e n s eth whi ch sum mari ze gener al breach of fi duci ary duty prin ci ples to supp or t i ts holdi ng. But even those pass ages from Ken s eth do not supp or t a breach of fi duci ary duty clai m here. For i nstances , the en banc court r eli es several tim es o n passages from Kens eth di scu ssi ng the fi duci ary duty owed to i nsu r e d s when the i nsu red “request[s] i nformation”

or poses “questi ons” to the fi duci ary

. See, e

. g

. , O pi ni on at 25–34.

But i n thi s case, James di d not req uest any i nformation or pose any questi ons. Rather , duri ng both telephone calls , James stated a fact—that Susan was bei ng admi tte d for brai n

( ...c onti nued) 2 4 b y Co ncert. R.77- 3 at 34

. A “go ahea d with wha tever needs to b e do ne” and an “okay,” confi rmed the admissio n an d that Concer t di d no t requi re any addi tio nal revie w to certi fy the ho spital admissi on. R.115 -3 at 23 9.

As n ote d ab ove, the Certi fi cate explained tha t prece rti fi catio n review was 25

a deter minatio n of whether a medi cal service was medi call y necessary and tha t “ [ p ] r e c erti fi catio n of medi cal necessity i s sub jec t to the l i mitatio ns, exclusi ons, and pro v i sio ns of this ce rti fi cate ... .” R.77 -3 at 23

.98 No. 11-1112

surgery

. A nd Susan was required by her poli cy to call

2 6 Concert and i nform them of any hospi tal admi ssi ons, at whi ch poin t Concert would inf or m t he i nsu red i f somet hi ng further

was required (i .e., “i f Preserv i ce Review and Precertifi cati on of the tr eatment plan i s required” by Concert ). R.77-3 at 34. So we do not have a case where the mere maki ng of the telephone call i mpli es a ques tion.

Li kewi se, “the only status and si tuation,” Opin i on at 25, 34 (quoti ng Kens eth , 610 F.3d at 466), “ci rcums tance,” Opin i on at 25, 29 (q uo tin g Kens eth , 610 F.3d at 466), or “predic ament,” Opin i on 26 (quoti ng Kens eth , 610 F.3d at 467), of whi ch Concert k new was that Susan had already seen her doctor and wa s bei ng admi tte d for brai n surgery

. Nothing James sai d i n ei ther telephone conve rsation put Co ncert on notic e that the “si tuat i on,” “ci rcums tance,” or “predic ament” was that James wa s i nqui ring about the network status of the Rush prov i ders. Accordi ngly, those pass ages from Kens eth prov i de no supp or t for t he en banc court’s deci si on. The court again quotes Kens eth when reasonin g that James “should not be penali zed becau se he fai led to comprehend the techni cal di fference between ‘[go ahead]’ and ‘the prov i der is

Brai n surgery i s obv i ousl y medi call y necessary and i t therefo re mak es 2 6

sense tha t the fi rst Co ncert repre sentat i v e t o l d J am es to “go ahea d with wha tever had to b e do ne,” b ut to call b ack when he knew the cor rect nam e of the hospi tal. R.259 -5 at 12 4– 25

. Si mil arly, once James call ed b ack and the Co ncert repre sentat i v es had deter mine the cor rec t na me of the hospi tal (Rush), there was no t hi ng to do b ut “o kay” the hospi tal admissio n. And Jo hny Antony, the Vi ce Presid ent of O perati ons for Conce rt, co nfi rmed in his depo siti on tha t approval was given fo r the b rain surgery “ba sed on the treatment tha t was b ei ng sought.” R.1 15 -3 at 23 9.No. 11-1112 99

i n-network].’” Opin i on at 30 (quoti ng Ken s e th , 610 F.3d at 467)

. Thi s case, though, does no t i nvolv e a “techni cal dif fer- 2 7 ence,” but rat her two ver y f undam ental an d di sti nct concepts easi ly understood by the aver age layp e r son: (1) An i nsu red

mus t notify the i nsu rance company of a hospi tal admi ssi on for pre-certifi cati on that the procedure i s medi cally necess a ry; and (2) the reimb ursement rat e for medi cal prov i ders wi ll depend

on th e ne t work status of those prov i ders. The enrollment documents p r o v ide d to Susan explain ed both of these poin ts clearly and i n si mple, un derstandable ter ms. In short, there i s no techni cal ques tion i nvolv ed.

This quote a ctuall y or i ginates i n Edd y v. Colonial Life Ins. C o. of Am. , 9 19 2 7 F.2d 74 7 (D.C. Ci r. 19 90 ), and i s then excerpted i n Kens eth

. Kens eth , 41 0 F.3d
at 46 7. In Edd y , the pl aintif f l earned tha t his empl oyer was cancell i ng i ts group health i nsuran ce coverage just days b efo re he was to und e rgo explo ratory surgery. The pl aintif f call ed his health i nsuran ce company, explained the situati on, and ask ed whether he coul d “co ntinue” his group, empl oyment-ba sed coverage. The i nsurer tol d Edd y he coul d not, b ut nev er mentio ned the opti on of converti ng to i ndivid ual coverage. Given the facts i n Edd y , the cour t held i t was a b reach of fi duci ary duty fo r the i nsurer not to di sclo se to Edd y tha t he coul d convert his pol i cy, stating: “Regardl ess of the preci sio n of his questio ns, once a b enefi c i ary mak es known his pred i cament, the fi duci ary i s under a duty to communic ate ... a l l m aterial facts i n connecti on with the trans actio n which the trustee knows or shoul d know. Edd y shoul d not b e penali zed b ecause he fail ed to compr ehend the technical di ffe rence b etween ‘conversio n’ and ‘conti nua tio n. ’ The sam e i gnorance tha t preci pi tates the need f or answ ers of ten l i mits the ab i l i ty to ask prec i sel y the ri ght questions.” Id

. at 75 1.100 No. 11-1112

Fin ally, the Cert i fi cate of Insurance and the enrollment packet Susan received were not “si lent or ambi guous” on the

2 8 relev ant i ssu es. See Opin i on at 26, 38 (quoti ng Kens eth , 610 F.3d at 472). Rather , these documents were absolutely clear on the di ffering levels of reimb ursement for i n-network and out-ofnetwork prov i ders and that i nsu reds were responsi ble for charges above the maxi mum allowable fee. The documents

we r e also clear on how an i nsu red could deter mi ne netwo r k status, pro v idi ng both di rections to call the PHCS network numb er or to fi nd the i nformation on-lin e

. Furt her, the 2 9 documents clearly explain ed the importance of notifyi ng Concert of any hospi tal admi ssi ons for pre-certifi catio n of medi cal necess i ty. Becaus e the enrollment packet Susan received clearly explain ed all of the relev ant prov i sio ns , the defendants di d not have a fi duci ary duty to r e min d James of the basi c ter ms of Susan’s he alth i nsu rance cover age, suc h as that payment reimb ursement rat es de pend, i n part, on the

The cour t i s cor rect tha t the do cuments the def endants pro v i ded di d not 2 8 compl y wi t h the technical requir ements of ERISA. Opini on at 13

. But the

enro l l ment packet Susan rece i v ed upon enro l l i ng i n the Co nce r t he al th i nsu r an c e p l an cl early explained all of the rel eva nt pro v i sio ns i n simpl e, straightfo rward terms. And even with this knowl edge, Susan chose the l ess expensive, an d mo re l i mited , i nsuran ce pl an.

James t e st i f i ed tha t after Susan b egan rece i v i ng b i l l s fro m Rush , he 2 9 attempted to deter mine the network statu s of the Rush pro v i der s o n- l i ne b ut was un ab l e to deter mine whether they were in-netwo rk or n ot. Ja mes, however, also testif i ed tha t he was “no t v ery computer l i terate,” R.115 -3 at 13 1, and the reco rd i nclud ed simpl e step-by-step i nstructio ns wi th screen shots sho wi ng the simpl i ci ty of deter mini ng pro v i der network statu s onl i ne, co nfi rming J ames’s sel f-assessment. R.259 -5 at 10 –1 2.No. 11-1112 101

prov i ders’ status as i n-network or out-of network

. See, e.g., Gr i g gs v. E.I. DuPont de Nemours & Co. , 237 F.3d 371, 381 (4 t h C ir

. 2 0 01) (“ERISA does not i mpose a gener al duty requiri ng ERIS A fi duci aries to ascert ai n on an i ndi vidu al basi s wh ether each benefi ci ary understands the coll a te ra l c on s equences of hi s

or her particu lar electi on.”); Maxa v. John Alden Life Ins. Co., 972 F.2d 980, 985–86 (8th Ci r. 1992) (f ind i ng no fi duci ary duty “i ndi vidu ally to notify partici pants and/or benefi ci aries of the speci fi c i mpact of the gener al ter ms of the plan upon them”); Harte v. Bethlehe m Steel Corp. , 214 F.3d 446, 454 (3d Ci r. 2000) (stati ng i t i s “unc ontr ov ersi al

... that a fi duci ary does not have
to reg ularly i nform benefi ci aries ever y tim e a plan ter m affec ts them”) 3 0

D. Susan’s deni al of be ne fi ts clai m i s moot becau se she

never pai d the Rus h prov i ders and her es tate has si nce been closed, so there i s no longer any harm to Susan or her estate. If he r cl a im were not moot , remand i s most expediti ous.

Because the def endants di d not hav e a fi duci ary duty t o i nfor m James 3 0 tha t Rush was out- of -networ k, the b reach of fi duci ary duty cl aim cann ot succeed. B u t e ve n i f James coul d succeed on Susan’s estate’s b reach of f i d uci ary duty cl aim, whether monetary paymen ts (which Cigna Corp

. v

. Amara , 13 1 S. Ct. 18 66 , 18 80 (2 01 1) , held coul d b e an appropr i ate equitab l e

rem e dy), are appropr i ate i n this case i s questio nab l e. See g ener ally Kens eth

v. Dean Health Plan, Inc. , 72 2 F.3d 86 9, 89 2 (7 th Ci r. 20 13 ) ( M ani on, J.,

concur ri ng).102 No. 11-1112

A s explain ed above, Susan’s deni al of benefi ts claim is
moot

. However , i f that clai m were not moot , I remain comfortable wi th the panel’s deci si on, n amely di recting the part i es to sub mi t a sti pulati on concerni ng the network status of the Rush prov i ders on remand. Opinio n at 3 n.3, 10 n.20. A t thi s po i nt, that soluti on s eems the most ex pedi ent. However , should the parties be unabl e to agr ee to a sti pulati on, the di stric t court can easi ly resolv e the i ssu e on remand on the basi s o f t he cu r r e nt

recor d. Speci fi cally, the di stric t court can rely on the deposi tion testim ony of Johny Ant o ny, the Vi ce Presi dent of Oper ations for Concert, R.115-3 at 250, 270, and c or respondence between Concert and Uni ver si ty Anesthesi olog ist s, to confi rm the network status of the Rush providers. R.77-7 at 7, 11.

III. CONCLUSION James suf fered a tr agic l o ss, and fi ndi ng out that Susan’s health i nsu rance di d not cover a bo ut $80,000 i n medi cal expenses only added to his g r i ef. James deserves sympathy, but i n the fi nal analysi s, the m i stake was the Kill i ans’ and n ot the defendants’. Once they received Susan’s di re and devastat

i ng d i agnosi s they di d not cons ult wi th, or consi der the terms of, Susan’s health i nsu rance plan. Thi s i s entirely understanda ble, but their mi stake does not create li abi li ty for the defen

dants. And i n creating suc h li abi li ty today , the court’s deci si on has wi de-spread rami fi cati ons. Hea l t h i nsu rance i s already expensi ve. And the court’s holdi ng wi ll o nly furthe r inc rease the cost of health i nsu rance becau se i nsu r a nce compani es, to prev ent bei ng held li able for expenses not cover ed by their poli ci es, wi ll require their repr esentatives to rev i ew the poli cy prov i si ons wi th each caller. Thi s i s not a no-cost propo si tion: It costs i nsu rance compani es money to staff telephones and theNo. 11-1112 103

more poli cy ter ms the representatives mus t cover , the more i t wil l cost. And the hi gher the admi ni strat i ve expenses, the fewer dollars spent on health care—and the hi gher the premi

ums

. Insureds then may not be able to afford the policy they prefer and i nstead may opt for a less costly option with mor e restr i cti ons. That i s what Susan di d i n thi s case: Susan selected

a less expensi ve health i nsu rance p l a n t hat used the PHCSOpen Acces s Net work , and t hat choi ce left Susan wer e fewer options and hi gher out-of-pocket expenses. Whi le i t is understandable to feel sympathy for those faci ng si gni fi cant medi cal bi lls, we cannot bend the law to prot ect i ndi vidu als from their own choi ces an d thei r o wn m i stakes. 3 1

Health i nsu rance i s also compli cated. It mus t be i n or der to address the multi tude of potent i a l h e a l th care scen arios. ERIS A requires a Summar y Plan Desc ripti on (“SPD”) for that ver y reason—to prov i de lay people a straightforward explanation of the ter ms of their health i nsu rance cover a g e

. A nd I agr ee wi th the court that t he d e fe ndants di d not prov i de an SPD whi ch comp li ed wi th ERIS A and that statuto ry penalti es are appropr i ate for that failu re. But t he fai lure to prov i de an SPD that compli ed wi th ERIS A di d not harm Susan bec a use the defendants prov i ded Susan with an enrollment packet that clearly explain ed all of the prov i si ons rele v ant to Susan’s sit uati on. Speci fi cally the enrollment packet explain ed the

re d u c e d re i mb ursement rat es pai d to ou t- of

- n e tw or k p ro vi d e rs

I also agree with Judge Easterb ro ok’s seco nd suggestio n that t he 3 1 majori ty’s approach can mak e partici pants worse of f, and I jo i n tha t por tio n of his di ssent. E as t e r br oo k, J., concur ri ng i n part, di ssenting i n part, at 51 –5 3.104 No. 11-1112

and how to deter mi ne i f a prov i der was i n the PHCS-Open Acces s Networ k. Yet there i s no evidenc e that Susan or James i nqui red whether Rush was wi th i n h e r n e tw or k. Un fort unately i t wa s no t , a nd as a result Susan was left wi th hefty medi cal bi lls, although in t he end nei ther Susan, James , nor her nowclosed (for purposes of credi tor s fi li ng clai ms) estate pai d these bi lls. And there i s no longer any legal li abi li ty on those unpai d bil l s. I n the fi nal analysi s that makes thi s case, for the mo st part, moot

. Remandi ng to hold the defendants li able for
statuto ry damages for their violati ons of ERIS A i s appropr i ate. But no more . I CONCU R IN PART and DISSENT IN PART.