In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1112

JAMES E. KILLIAN,

Plaintiff-Appellant,

v.

CONCERT HEALTH PLAN, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 1:07-cv-04755 — Gary S. Feinerman and Marvin E. Aspen, Judges.

ARGUED SEPTEMBER 29, 2011

DECIDED APRIL 19, 2012

REARGUED EN BANC SEPTEMBER 27, 2012

DECIDED NOVEMBER 7, 2013

Before WOOD, Chief Judge, and POSNER, FLAUM,

EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, WILLIAMS,

SYKES, TINDER, and HAMILTON, Circuit Judges.

RIPPLE, Circuit Judge. In February 2006, Susan Killian

learned that she had lung cancer, which had spread to her

brain. After physicians at Delnor Community Hospital
2 No. 11-1112

determined that they could not operate, she sought a second

opinion from a physician at Rush University Medical Center

(“Rush”) and soon afterward was admitted for emergency

brain surgery. Although the surgery successfully removed the

most serious tumor, her cancer treatment was ultimately

unsuccessful, and she died a few months later. 

At the time of her diagnosis, Mrs. Killian was an employee

ofRoyalManagement Corporation(“Royal Management”) and

participated in its group health insurance, which was provided

by Concert Health Plan Insurance Company (“Concert”).

Concert paid for part of Mrs. Killian’s cancer treatment, but

denied coverage, or paid only a small percentage, of services

received at Rush. Mr. Killian, the administrator of her estate,

brought this action against Concert, Concert Health Plan,1

Royal Management and Royal Management Corporation

Health Insurance Plan (the “Royal Plan”) seeking payment of

benefits against the Royal Plan and Concert, relief for breach of

fiduciary duty against Royal Management and Concert, and

statutory penalties against Royal Management.2

The district court granted summary judgment for the

defendants on the denial of benefits and breach of fiduciary

Concert Health Plan was dismissed as a party in earlier proceedings. See 1

R.232. Mr. Killian does not appeal that decision.

 The district court’s jurisdiction was predicated on 29 U.S.C. § 1132(e).

2

In September 2012, Mr. Killian moved to substitute himself, in his

individual capacity, as plaintiff, and we granted his motion. App. R.48. He

subsequently has requested substitution again, this time to return himself

as administrator of Mrs. Killian’s estate. We address this request infra. 
No. 11-1112 3

duty claims and awarded statutory penalties against Royal

Management. A panel of this court affirmed the decision of the

district court on the first two claims, but remanded for the 3

district court to correct the calculation of statutory penalties.

Killian v. Concert Health Plan (Killian I), 680 F.3d 749, 764–65 (7th

Cir. 2012). After rehearing by the en banc court, we adopt the 4

panel’s reasoning and conclusion related to the denial of

benefits and statutory penalties issues. On the breach of

fiduciary duty claim, however, we reverse the judgment of the

district court and remand for further proceedings.

I

BACKGROUND

Concert began providing insurance toRoyal Management’s

employees in July 2005. The agreement between Royal

Management and Concert provided that Royal Management

would be the plan administrator and that Concert would be the

“administrator for claims determinations” and the “ERISA

[Employee Retirement Income Security Act] claims review

fiduciary” with “full and exclusive discretionary authority to:

1) interpret Policy or Group Plan provisions; 2) make decisions

On the denial of benefits claim, the panel directed the parties to submit a

3

stipulation as to whether the providers at Rush were within Mrs. Killian’s

network. Killian v. Concert Health Plan (Killian I), 680 F.3d 749, 764 (7th Cir.

2012).

 Our jurisdiction is predicated on 28 U.S.C. § 1291.

4
4 No. 11-1112

regarding eligibility for coverage and benefits; and 3) resolve

factual questions relating to coverage and benefits.”5

While employed with Royal Management, Mrs. Killian

enrolled in the Royal Plan and selected coverage under the

“SO35 Open Access” option. The Master Group Policy and

accompanying Certificate of Insurance applicable to her SO35

plan described the terms, exclusions, conditions and benefits

available under the Royal Plan. Participants were cautioned to

seek services from network providers whenever possible and

told that “[t]o confirm that Your ... provider is a CURRENT

participant ... You must call the number listed on the back of

Your medical identification card.” The Master Group Policy

6

did not specify which of several numbers on the back of the

card should be called, and a few pages later it instructed

participants to obtain provider participation information by

calling an unspecified “toll free telephone number on your

identification card.” Participants also were directed to “call the 7

number” on their identification cards to verify infertility

benefits, or appeal a decision denying benefits. They were 8

instructed to follow the procedures described in the

 R.259-3 at 77. 5

 Id. at 15 (emphasis added). 6

 Id. at 19 (emphasis added). 7

 Id. at 42, 49, 50.

8
No. 11-1112 5

“Utilization Management section” when receiving emergency

care.9

The front of Mrs. Killian’s insurance card listed toll-free

numbers under four different headings. The second and most

prominently listed number was for “Customer Service,” which

was the same toll-free number for “Utilization review.” The

back of her card listed toll-free numbers under three different

headings, but used the same toll-free number for

“UTILIZATION REVIEW” and medical claims. Both sides of 10

this card are appended to this opinion.

In late February 2006, Mrs. Killian sought treatment from

her primary care physician, Dr. Bradshaw, for a severe cold

and persistent headaches. A CT scan revealed the presence of

three brain tumors, and she was diagnosed with lung cancer,

which had metastasized to her brain. Mrs. Killian then went to

Delnor Community Hospital; she stayed for five days, but her

physicians concluded that they could not operate on the

tumors. Seeking a second opinion, the Killians scheduled an

appointment with Dr. Philip Bonomi, a physician at Rush who

had treated Mrs. Killian’s daughter before she died of cancer

in 2001. The Killians met with Dr. Bonomi and Dr. Louis

Barnes, a neurosurgeon, on April 7, 2006. Dr. Barnes reviewed

Mrs. Killian’s medical records, including the CT scan, and

determined that Mrs. Killian would be dead in five days unless

the largest tumor was removed immediately. 

 Id. at 21.

9

 R.82-7 at 2–3. 10
6 No. 11-1112

The Killians did not contact Concert before meeting with

Dr. Bonomi because their plan to see Dr. Bonomi for a second

opinion did not depend on whether he was in Mrs. Killian’s

network. However, when they learned that Mrs. Killian had

only a few days to live unless the largest tumor was removed

and that physicians at Rush could perform the necessary

surgery, Mr. Killian called Concert about the developing

situation. He first called the “provider participation” number

listed on the front of Mrs. Killian’s insurance card. Mr. Killian

informed the Concert representative that he and Mrs. Killian

were at St. Luke’s Hospital for a second opinion, that the 11

physicians had determined that the tumor had to be removed

and that the physicians wanted Mrs. Killian to be admitted for

brain surgery. The representative searched her database and

could not find any information on “St. Luke’s,” but told

Mr. Killian to “go ahead with whatever had to be done.” She 12

also told him to call back later.

13

Mr. Killian called back later the same day, April 7, but this

time he called the number listed under the prominent

“Customer Service” heading on the front of Mrs. Killian’s

insurance card, which is the same number under the heading

Rush University Medical Center adopted its current name in 2003. See 11

H ist o r y , Rush Uni ve r s it y Medi c a l C e nt e r C a r e e r s ,

http://www.jobsatrush.com/history.htm (last visited Mar. 18, 2013). Before

that, Rush’s name incorporated the name of a predecessor entity, St. Luke’s.

Id.

 R.87 at 2. 12

 R.253 at 72. 13
No. 11-1112 7

“Utilization review” on the front and back of the card and is

also listed as the number for medical claims. The

representative who took the second call seemed to be aware of

Mr. Killian’s earlier call and confusion about the name of the

hospital because when he mentioned Rush she said, perhaps

in jest, “Oh, you mean St. Luke’s.” He could hear her laugh 14

and tell a colleague, “It’s the guy from St. Luke’s.” When Mr.

15

Killian told the representative, “I’m trying to get confirmation

that we are going to be—my wife is going to be admitted to

Rush,” the representative said, “Okay.” She did not tell Mr.

16

Killian whether services at Rush were in or out of network or

whether there would be any limits to coverage.17

Mrs. Killian underwent surgery at Rush two days later,

April 9, and was released on April 12, 2006. The record is silent

as to whether the Killians would have gone to a different

hospital or sought emergency admission at Rush had Concert 18

representatives told Mr. Killian that Rush was not in

Mrs. Killian’s network. After the surgery, she received some

outpatient services from Dr. Bonomi, and, in June 2006, she

 Id. at 73.

14

 R.87 at 2. 15

 R.253 at 73. 16

The record does not contain call logs or other objective proof of which 17

numbers Mr. Killian called; however, Concert never has disputed these

facts. 

Services received on an emergency basis are processed at the in-network 18

level. See R.251 at 91.
8 No. 11-1112

was admitted to Rush on an emergency basis for nine days to

be treated for pneumonia. Mrs. Killian attempted

chemotherapy but could not tolerate it, and she died in August

2006. 

During the months between Mrs. Killian’s surgery and

death, Mr. Killian received notices from Concert stating that

Concert would not cover services at Rush because the hospital

was not in Mrs. Killian’s network. In response to a letter from

Mr. Killian disputing the denial and requesting immediate

review, Concert reiterated that the claims were out of network

and that the Killians were responsible for the maximum

allowable fee. When Mr. Killian appealed, Concert agreed to

consider Mrs. Killian’s treatment for pneumonia as an

emergency and to process the claim for that treatment at the

in-network level. The remaining claims total approximately

$80,000.

Mr. Killian filed this action in his capacity as administrator

of Mrs. Killian’s estate, and discovery ensued. The proceedings

before the district court included multiple motions to dismiss

and for summary judgment, and Mr. Killian amended his

complaint twice. Finally, the district court granted summary

judgment in favor of the defendants on the denial of benefits

and breach of fiduciary duty claims and granted statutory

penalties against Royal Management for failure to provide

Mrs. Killian with a summary plan description. 

On the denial of benefits claim, Mr. Killian argued that

Concert’s decision to deny benefits should not be sustained

because Concert did not comply with ERISA’s notification

requirements and because there was no evidence supporting
No. 11-1112 9

Concert’s determination that Rush and Dr. Bonomi were not in

Mrs. Killian’s network. Section 1133(1) of Title 29 requires that

when a benefits claim is denied, the plan must give notice to

the beneficiary by “setting forth the specific reasons for such

denial, written in a manner calculated to be understood by the

participant.” Failure to comply substantially with § 1133 may

be grounds for reversing an administrator’s decision. See Love

v. Nat’l City Corp. Welfare Benefits Plan, 574 F.3d 392, 396 (7th

Cir. 2009). The district court determined that the notifications

sent by Concert did not comply with all of the technical

requirements set forth in 29 C.F.R. § 2560.503-1(j). However,

19

the court held that, because Concert’s letters substantially

complied with ERISA’s notification requirements, the

deficiencies did not warrant a finding that Concert’s decision

In particular, the district court determined that Concert’s notification

19

letters

failed to identify, by name, any “specific rule, guideline,

protocol, or other similar criterion” used in reaching the

decision. 29 C.F.R. § 2560.503-1(j)(5). The letters neglect to

inform Killian that a copy of any relevant document, rule

or other information will be provided to him at no cost,

upon request. Id. The letters also say nothing about

[Concert’s] internal appeals procedures, available dispute

resolution options, or Killian’s right to sue under 29 U.S.C.

§ 1132(a). (Id.) Indeed, as Killian has emphasized

throughout these proceedings, these notifications letters

are quite sloppy. For example, they refer to Susan’s

network as the PHCS (Open Access) Network, even

though that is not the network mentioned in the COI.

Killian v. Concert Health Plan Ins. Co., No. 07-cv-04755, 2010 WL 2681107, at

*8 (N.D. Ill. July 6, 2010).
10 No. 11-1112

was arbitrary and capricious. In addition, it held that there was

no need to remand to Concert because Mr. Killian did not

allege that the providers in question were within Mrs. Killian’s

network.20

On the breach of fiduciary duty claim, Mr. Killian argued

that Concert and Royal Management failed to provide

Mrs. Killian with an adequate summary plan description. The

district court granted summary judgment for the defendants

because Mr. Killian had failed to show bad faith, purposeful

concealment or detrimental reliance. Mr. Killian moved for 21

reconsideration arguing that the district court had overlooked

our decision in Kenseth v. Dean Health Plan, Inc., 610 F.3d 452

(7th Cir. 2010), and had failed to address the two telephone

calls that he made to Concert on the day of the appointment

with Dr. Bonomi. Mr. Killian argued that Concert breached its

fiduciary duty by failing to inform him that Rush was out of

network and that coverage of any services received at Rush

would be limited. The district court dismissed this argument

on the grounds that Concert did not give Mr. Killian any

information about whether Rush was in network and because

the Killians had not relied on any statements made by Concert

Id. at *9–10. The district court did not interpret Mr. Killian’s briefs as

20

arguing that Concert erred in determining that Rush and Dr. Bonomi were

out of network. Mr. Killian did make this argument. See R.86 at 12; R.263 at

8–9; R.290 at 8–9. The panel resolved this potential problem by requiring the

parties to submit a stipulation as to whether Rush, Dr. Bonomi and Dr.

Barnes were out of network, Killian I, 680 F.3d at 764, and we agree with

that disposition, see infra p. 26.

 Killian, 2010 WL 2681107, at *11. 21
No. 11-1112 11

or Royal Management; it additionally noted that Mr. Killian

should have raised this argument in his opposition to

summary judgment.22

A new district judge took over the case after summary

judgment on the denial of benefits and breach of fiduciary duty

claims. That judge addressed the separate claim for statutory

penalties for failure to provide plan documents and ordered

Royal Management to pay Mr. Killian $5,880.23

After a final judgment was entered in the district court,

Mr. Killian timely appealed. A panel of this court affirmed

summary judgement for the Royal Plan and Concert on the

denial of benefits claim, but required the parties to submit a

Killian v. Concert Health Plan Ins. Co., No. 07-cv-04755, 2010 WL 3000205, 22

at *2 (N.D. Ill. July 28, 2010). On appeal, Royal Management and Concert

did not argue that Mr. Killian waived this argument, thus waiving any

waiver. Killian I, 680 F.3d at 757; Westefer v. Snyder, 422 F.3d 570, 584 n.20

(7th Cir. 2005). Some of our dissenting colleagues, in contradistinction to

their position in the panel opinion, Killian I, 680 F.3d at 757, now maintain

that Mr. Killian waived his fiduciary duty argument by not raising it before

the district court. As the panel noted, “Concert did not argue that James had

waived the argument.” Id. Accordingly, any waiver was in turn waived by

the defendants. Westefer, 422 F.3d at 584 n.20. Nor can we accept the

proposition that Mr. Killian’s brief in this court was so abbreviated on the

subject as to have failed to alert them to this contention.

Killian v. Concert Health Plan, No. 07-cv-04755, 2010 WL 5316041, at *2–3 23

(N.D. Ill. Dec. 17, 2010). Section 1024(b)(4) of Title 29 requires an

administrator, upon written request, to furnish a beneficiary with certain

plan documents. A beneficiary may seek statutory penalties against an

administrator who fails to provide the requested documents within thirty

days. 29 U.S.C. § 1132(c)(1).
12 No. 11-1112

stipulation as to whether Rush, Dr. Bonomi and Dr. Barnes

were in Mrs. Killian’s network. The panel also affirmed

summary judgment for Royal Management and Concert on the

fiduciary duty claim. On the statutory damages claim, the

panel reversed and remanded because the district court used

the wrong dates in calculating the penalty and failed to

address one of Mr. Killian’s arguments.

II

DISCUSSION

As noted earlier, we affirm the panel’s decision on the

denial of benefits and statutory penalties claims; we therefore

limit our discussion here to the one claim upon which we chart

a course different from that set out in the panel opinion: the

breach of fiduciary duties. Mr. Killian submits that Royal

Management and Concert breached their fiduciary duties in

two ways: first, by failing to provide Mrs. Killian with a

summary plan description and, second, by failing to inform

him that Mrs. Killian’s providers were out of network during

telephone conversations on April 7, 2006.

A beneficiary is entitled to relief for a breach of fiduciary

duty if he proves “(1) that the defendant is a plan fiduciary; (2)

that the defendant breached its fiduciary duty; and (3) that the

breach resulted in harm to the plaintiff.” Kenseth, 610 F.3d at

464. It is not disputed here that Royal Management and

Concert are both fiduciaries under ERISA. Accordingly, with

respect to each of Mr. Killian’s theories on this claim, the issues

before us are only those of breach and harm. 
No. 11-1112 13

On the first theory, related to the failure to provide a

summary plan description, the panel determined that Royal

Management and Concert breached their fiduciary duty. It

nevertheless affirmed summary judgment in favor of the

defendants because Mr. Killian could not show that the lack of

a summary plan description caused his harm. We agree with

this result because Mr. Killian knew that he could determine a

provider’s network status by calling a number on Mrs. Killian’s

insurance card, and we adopt the panel’s decision on this

matter. 

A review of Mr. Killian’s second theory of breach of

fiduciary duty is more difficult to resolve, and it is with respect

to this specific theory that we depart from the conclusions of

the panel decision. 

We pause at this point to set forth, for the convenience of

the reader, the path of our discussion. First, we examine

whether there is sufficient evidence of a controversy between

the parties to exercise jurisdiction over this claim. We conclude

that, although the full nature and extent of the harm is a merits

question, it is clear that, as this case comes to us today, there is

a live dispute between the parties about the merits of the claim

that justifies the exercise of our jurisdiction.24

Having resolved this threshold issue, we shall then turn to

the merits. On this point, we agree with Mr. Killian that,

because the plan documents provided to Mrs. Killian were

Our reasoning with respect to the justiciability of the disputed claim 24

applies as well to the other claims decided by the panel that are not

controverted in this en banc proceeding.
14 No. 11-1112

incomplete in themselves, we must evaluate in some depth

whether that deficiency was cured in the telephone calls

Mr. Killian made to Concert on April 7, 2006. For the reasons

set forth in more detail below, we conclude that the summary

judgment record does not permit us to resolve this issue of

breach in favor of the defendants. Assuming that the question

of breach is resolved in favor of Mr. Killian the summary

judgment record similarly raises a genuine issue of triable fact

on the question of harm.

We now turn to a plenary discussion of the issues we have

just outlined.

A.

In September 2012, following the panel decision inthis case,

Mr. Killian notified the court that Mrs. Killian’s estate had been

closed in August 2011. At the time, the only asset held by the

estate was its claim against the defendants, which was

distributed to Mr. Killian. Mr. Killian moved to substitute

himself as plaintiff in his individual capacity, rather than as

administrator of Mrs. Killian’s estate. We granted his motion.

We were concerned, however, about whether this change

affected our jurisdiction under the case or controversy

requirement of Article III of the Constitution of the United

States. This concern obligated us to consider the matterfurther.

See North Carolina v. Rice, 404 U.S. 244, 245–46 (1971) (per

curiam). Accordingly, following reargument en banc, we

ordered additional briefing to assist us in determining

whether, in light of the closing of the estate, “Mr. Killian

retains any interest in obtaining relief and whether the relief
No. 11-1112 15

sought by Mr. Killian will make a difference to his legal

interests.” The parties responded. In his submission, Mr.

Killian notified the court that he had reopened Mrs. Killian’s

estate and again sought to pursue the claim on behalf of the

estate. Having reviewed the submissions, we now conclude

that there is a live controversy between the parties such that

our jurisdiction over the matter is not in question. 

Under Article III, the federal courts “may only adjudicate

actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317

(1988). When a case becomes moot, this constitutional

requirement is lacking. United States v. Segal, 432 F.3d 767, 773

(7th Cir. 2005) (noting that a case is moot if the controversy

between the parties has been resolved). The Supreme Court

recently has reiterated, simply and directly, the governing

principle in any mootness inquiry:

There is thus no case or controversy, and a suit

becomes moot, when the issues presented are no

longer “live” or the parties lack a legally cognizable

interest in the outcome. But a case becomes moot

only when it is impossible for a court to grant any

effectual relief whatever to the prevailing party. 

Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (emphasis added)

(citations omitted) (internal quotation marks omitted). That is,

although “federal courts are without power to decide

questions that cannot affect the rights of litigants in the case

before them,” Rice, 404 U.S. at 246, “[a]s long as the parties

have a concrete interest, however small, in the outcome of the

litigation, the case is not moot,” Knox v. Serv. Emps. Int’l Union,

Local 1000, 132 S. Ct. 2277, 2287 (2012) (internal quotation
16 No. 11-1112

marks omitted).Consequently, “[t]he burden of demonstrating

mootness is a heavy one,” Los Angeles Cnty. v. Davis, 440 U.S.

625, 631 (1979) (internal quotation marks omitted), borne by

the party seeking to have the case declared moot, see, e.g.,

Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 569–70

(1984).

Notably, the Court also has counseled that we must be

careful not to “‘confuse[] mootness with whether [the plaintiff]

has established a right to recover ..., a question which it is

inappropriate to treat at this stage of the litigation.’” Chafin, 133

S. Ct. at 1024 (second and third alterations in original) (quoting

Powell v. McCormack, 395 U.S. 486, 500 (1969)). In the present

case, to succeed on the merits of the fiduciary duty claim (the

claim that was in the possession of Mrs. Killian’s estate before

it was closed), Mr. Killian must present evidence from which

a factfinder can conclude that the estate suffered a harm from

a breach on the part of the defendants. But that is a burden that

he must carry on the merits. At this stage, by contrast, as we

consider our basic subject matter jurisdiction, Mr. Killian must

assert such a cognizable injury and demonstrate that it is

possible for the court, were it to agree with Mr. Killian’s

arguments on liability, “to ‘fashion some form of meaningful

relief,’” Flynn v. Sandahl, 58 F.3d 283, 287 (7th Cir. 1995)

(emphasis in original) (quoting Church of Scientology v. United

States, 506 U.S. 9, 12 (1992)). As we noted in Dixon v. ATI Ladish

LLC, 667 F.3d 891, 894 (7th Cir. 2012), “a good defense to

liability is a reason why defendants prevail on the merits rather

than a reason why the litigation should be dismissed without

prejudice—which is the consequence of mootness.” See also

Chafin, 133 S. Ct. at 1025 (noting that uncertainty as to whether
No. 11-1112 17

an order will be followed or enforced does not render a case

moot); Segal, 432 F.3d at 773 (noting that the advisability of a

particular remedy “is not relevant to the mootness inquiry”);

cf. Harzewski v. Guidant Corp., 489 F.3d 799, 804 (7th Cir. 2007)

(reversing a district court’s dismissal for lack of standing

because “the question whether an ERISA plaintiff is a

‘participant’ entitled to recover benefits under the Act should

be treated as a question of statutory interpretation

fundamental to the merits of the suit rather than as a question

of the plaintiff’s right to bring the suit”). In short, the mootness

inquiry turns on “whether the relief sought would, if granted,

make a difference to the legal interests of the parties (as distinct

from their psyches, which might remain deeply engaged with

the merits of the litigation).” Air Line Pilots Ass’n, Int’l v. UAL

Corp., 897 F.2d 1394, 1396 (7th Cir. 1990) (emphasis added). 

The closing and reopening of the estate is an odd

circumstance, but one that unnecessarily, in our view,

complicates the jurisdictional inquiry. Regardless of whether

the estate is opened or closed, there is no question that the

parties have a current, live dispute with both immediate and

potentialfuture consequences. Mrs. Killian incurred significant

medical bills preceding her death. See generally R.77-4, 77-5

(medical bills and explanations of benefits). The record reflects

that she (or Mr. Killian after her death) paid several of those

bills. See, e.g., R.77-5 at 18 ($65.77 paid to “Rush University

Medical Center” for servicesdated 04/08/2006); id. at 19 ($11.87

paid to “Rush University Medical Center” for services dated

04/07/2006); id. at 40 ($10 paid to “Rush University Medical

Center” for services dated 04/07/2006). Those debts

incurred—and bills actually paid—would not necessarily have
18 No. 11-1112

been the same had the defendants covered her care to the

extent required had the providers been in-network. Indeed,the

record suggests that co-pay, coinsurance, and annual

deductible amounts differ depending on whether a service is

obtained from an in-network or out-of-network provider. See

R.77-3 at 65–69 (setting forth the applicable costs under the

SO35 Open Access plan, the plan in which Mrs. Killian was

enrolled). The estate, therefore, already has suffered this

concrete and redressable injury, and this fact alone is sufficient

to secure our jurisdiction.

Although these amounts in themselves are sufficient to

prevent us from declaring the case moot, it would be wrong to

suggest that the only consequence of resolving this dispute

would be to settle debts on these amounts already paid. Since

Mrs. Killian’s death, the dispute in this case always has been one

between Mr. Killian and the defendants over his wife’s

coverage and their family’s resulting liability on third-party

medical debts. Initially, he pursued this dispute through the

vehicle of a probate estate, with the entire corpus of the estate

being the claims against the defendants. Tied up in the same

dispute, however, are the debts that Mrs. Killian died owing,

which we understand could have been collected by her

medical creditors either through claims against her estate or

directly against Mr. Killian under the Illinois Family Expense

Act, 750 ILCS 65/15. For practical purposes, as far as Mr. Killian

was concerned, the vehicle the creditors pursued was of little

consequence. In the end, the responsibility for payment rested

with him, either as administrator of the estate or because of his

direct and personal liability. Unsurprisingly, the creditors

appear to have pursued the path of least resistance and billed
No. 11-1112 19

Mr. Killian directly. Also unsurprisingly, the record does not 25

reflect that any of the medical providers have ever instituted

judicial proceedings to collect on the debts as opposed to

working with Mr. Killian toward payment, perhaps at the

conclusion of this litigation. Given these circumstances,

Mr. Killian’s initial decision to close the estate is

understandable. It was Mrs. Killian’s claim, but he inherited it,

and, in any event, the consequence of the resolution of the

dispute, whatever it may be, falls to him alone. The estate is

and has always been a construct to resolve this dispute. We

find it equally understandable that, once it appeared from the

court’s own request for supplemental filings that the closing of

the estate might matter for our purposes, Mr. Killian

accommodated that possibility by reopening the estate.

Whether, as a matter of state law, that vehicle is a viable or

preferable way of proceeding is of secondary importance to

our present inquiry. By no account is the present dispute

resolved, and by no account has there been any fundamental

shift in the relationship of the parties to the dispute.26

Judge Manion’s dissent (hereinafter dissent) contends that this statement 25

is unsupported by the record, which includes copies of bills submitted to

Mrs. Killian. However, Mr. Killian stated in his affidavit that the providers

“continue to bill me,” R.87 at 2, and counsel informed us both at oral

argument and in response to ourrequest for supplemental filings that Rush

providers have continued to be in contact with Mr. Killian through his

attorneys regarding the amounts still owed for Mrs. Killian’s care.

Regardless of the name atop the bills received, it is apparent that the

providers have sought reimbursement from the Killians directly.

The dissent asserts that any harm that has been suffered or might be

26

(continued...)
20 No. 11-1112

The foregoing discussion reveals the direct financial

interests at stake in the amounts already paid, and the

sufficiently real possibility that the additional debts may come

Mr. Killian’s way. In light of the reopening of the estate, the

contention in Judge Manion’s dissent (hereinafter dissent) that

there is no possibility of recovery of the medical bills from the

estate, and therefore no apparent harm to the estate, is not

demonstrably correct. Whether that contention was correct

while the estate was closed is a somewhat complicated

question. In Illinois, the fact that an estate is closed may, but

does not necessarily, preclude creditors from bringing claims

against it. In Schloegl v. Nardi (In re Estate of Perrine), 234 N.E.2d

558, 561 (Ill. App. Ct. 1968), the Illinois Court of Appeals held

that an estate that had been duly administered and closed

 (...continued) 26

suffered by Mr. Killian from an unfavorable resolution ofthis dispute arises

not from his status relative to the estate, but by operation of Illinois law,

given his marriage to Mrs. Killian at the time she incurred medical bills. It

attempts to illustrate the point by imagining that the Killians had divorced

following the medical care in question, such that Mr. Killian might continue

to be liable (and continue to benefit from a favorable resolution of the

present dispute) despite not being the beneficiary of her estate. But the

premise of the dissent’s exercise underscores the central issue. The Killians

did not divorce, and Mr. Killian stands before the court in his proper

person, both husband and administrator/beneficiary, asking the court to

resolve the same issue he has always asked it to resolve, and for the same

reason: He has faced and continues to face uncertain liabilities relating to

Mrs. Killian’s care at Rush.

Accordingly, we deem Mr. Killian’s most recent motion to substitute to

be instead a motion to add himself in his capacity as administrator of the

estate as a plaintiff to this action, and we grant the motion.
No. 11-1112 21

could be reopened when a plaintiff brought a personal injury

claim against the decedent. Subsequent cases have

distinguished Schloegl, but have not rejected its conclusion that

a claim may be brought against an estate if the time for

bringing such claims has not expired. See McCue v. Colantoni,

400 N.E.2d 683, 687 (Ill. App. Ct. 1980) (rejecting a personal

injury claim against an estate because, unlike the claim in

Schloegl, the claim was brought after the limitations period for

personal injury claims had expired); Dichtl v. Foster McGaw

Hosp. (In re Estate of Garawany), 399 N.E.2d 1024, 1026–27 (Ill.

App. Ct. 1980) (rejecting a late claim brought by medical

providers because, unlike in Schloegl, the insurance policy

already had been paid to the estate); see also Rivera v. Taylor,

336 N.E.2d 481, 485 (Ill. 1975) (noting that the statute governing

the period for bringing claims against an administrator would

not bar a personal injury claim before the end of the limitations

period for that claim). 

Any claim against Mr. Killian or Mrs. Killian’s estate would

likely be brought to enforce the agreement between

Mrs. Killian and the Rush providers or against Mr. Killian for

payment under the Illinois Family Expense Act, 750 ILCS

65/15. The limitations period for actions on written contracts or

written evidence of indebtedness is ten years. 735 ILCS

5/13-206. A five-year limitations period applies to “actions on

unwritten contracts, expressed orimplied,” 735 ILCS 5/13-205,

and claims for family expenses under the Family Expense Act,

id.; Juechter v. Grace, 371 N.E.2d 179, 181 (Ill. App. Ct. 1977).

These limitations periods may be tolled if the party to be

charged makes a partial payment, St. Francis Med. Ctr. v.

Vernon, 576 N.E.2d 1230, 1231 (Ill. App. Ct. 1991), or new
22 No. 11-1112

written promise to pay, Chase v. Bramhall, 98 N.E.2d 529, 531

(Ill. App. Ct. 1951). The record suggests that Mrs. Killian

agreed to be responsible for the charges, see, e.g., R.77-5 at 36

(bill from Rush listing Mrs. Killian as “Guarantor”), and makes

clear that at least some payments were made. There is no

evidence as to whether the Killians, or Mr. Killian on behalf of

the estate, also agreed in writing to pay all or portions of the

remaining bills as counsel informs us he has done verbally

throughout the course of these proceedings. 

In any event, as we have noted, the estate has been

reopened and, in light of the proceedings in this case, claims

for payment that were being sent to Mr. Killian might be

pursued now against the estate. This reality is also certainly

sufficient to support our exercise of jurisdiction. 

The dissent makes much of its assessment that, as against

the estate or Mr. Killian personally, all relevant limitations

periods have run, and therefore Mr. Killian has no reasonably

foreseeable injury on the horizon. It ignores, however, that the

debt to the providers already incurred is not contested in this

action and persists as a matter of state law regardless of the

running of any limitations period. La Pine Scientific Co. v.

Lenckos, 420 N.E.2d 655, 658 (Ill. App. Ct. 1981) (noting that

statutes of limitation “bar the right to sue for recovery but do

not extinguish the debt which remains as before”); Cook v. Britt,

290 N.E.2d 908, 909 (Ill. App. Ct. 1972) (“[A] statute of

limitations is an act limiting the time within which legal action

shall be brought and affects the remedy only and not a

substantive right.”). In any event, we simply do not know the

scope of Mr. Killian’s legal liability on that debt, nor do we

know the extent of his exposure to the detrimental
No. 11-1112 23

consequences of having significant unpaid bills. In short,

whether Mr. Killian or the estate would have valid legal

defenses, including applicable statutes of limitation, to any

separate legal action to enforce the debt is simply not a

dispositive inquiry for present purposes.

One more point bears noting. The parties seem to have

focused their jurisdictional arguments on whether there is a

stated right to damages, and the above discussion therefore

concentrates on that approach. However, Mr. Killian’s prayer

for relief in the operative complaint and, indeed, the words of

the statute, do not restrict the relief available in this case to

monetary relief. Particularly relevant to the present case, the

possibility of meaningful declaratory relief supports an

exercise of jurisdiction.27

On the issue of mootness, “[t]he question is whether the

facts alleged, under all the circumstances, show that there is a

substantial controversy, between parties having adverse legal

interests, of sufficient immediacy and reality to warrant the

issuance of a declaratory judgment.” Super Tire Eng’g Co. v.

McCorkle, 416 U.S. 115, 122 (1974) (internal quotation marks

omitted). The record before us makes clear that this

jurisdictional threshold is satisfied. Mr. Killian’s financial

affairs are burdened with real uncertainty as a result of his

wife’s last illness, and a district court could award declaratory

Mr. Killian’s requested relief is broad enough to encompass a declaratory

27

judgment. See R.134 at 12–13 (requesting relief in the form of payment of

medical bills, attorney’s costs and fees and “such other legal or equitable

relief as the court deems appropriate”).
24 No. 11-1112

relief that would alter significantly that burden. When the 28

possibility ofdeclaratory relief is considered together with past

and potential future pecuniary losses to the estate that might

justify monetary relief, there is no question that the case before

us is a live one and one in which the court, by granting a form

of the requested relief, can alter substantially the relationship

of the parties.

On remand, the district court must deal with the questions

of liability and, if it reaches the question, remedy. This latter

issue will require the district court to resolve many factual and

legal matters on which the present record now permits only

speculation. For the present moment, it is sufficient to say that

the record fails to establish definitively that the Killians

incurred no harm as a result of the alleged breach. Nor is it

clear that declaratory relief would be unavailable to

Mr. Killian. 

In light of the fact of losses already supported by the record

and persisting uncertainties concerning the future liability of

the estate and its beneficiary, we cannot say that “there is

nothing for us to remedy, even if we were disposed to do so.”

Spencer v. Kemna, 523 U.S. 1, 18 (1998). The case is not moot,

and we must proceed to the merits.

The harm necessary to succeed with the claim, as we have noted, belongs

28

to the estate. In light of the particular factual circumstances of the case,

however, Mr. Killian’s personal liabilities on Mrs. Killian’s debts would not

be irrelevant to a court fashioning appropriate declaratory relief in its

discretion. In short, there is more at stake here than Mr. Killian’s “wish that

the Rush doctors receive additional compensation for their services and ...

desire [for] vindication for the wrong he perceives.” Dissent at 73.
No. 11-1112 25

B.

In determining whether a fiduciary duty has been

breached, our inquiry is guided by the plain wording of the

statute and by established case law. As fiduciaries, Royal

Management and Concert, in fulfilling their duties to Mrs.

Killian and other plan participants, must

discharge [their] duties ... solely in the interest of

the participants and beneficiaries and ... with the

care, skill, prudence, and diligence under the

circumstances then prevailing that a prudent man

acting in a like capacity and familiar with such

matters would use in the conduct of an enterprise of

a like character and with like aims.

29 U.S.C. § 1104(a)(1)(B). These duties are analogous to those

of loyalty and care that are imposed upon a trustee under the

common law. See Kenseth, 610 F.3d at 465–66. 

Our decision in Kenseth sets forth, with great precision, how

the command of the statute ought to be applied in a situation

such as the one before us. There, we recognized that 

“once an ERISA beneficiary has requested

information from an ERISA fiduciary who is aware

of the beneficiary’s status and situation, the

fiduciary has an obligation to convey complete and

accurate information material to the beneficiary’s

circumstance, even if that requires conveying

information about which the beneficiary did not

specifically inquire.” 
26 No. 11-1112

Id. at 466 (emphasis in original) (alteration omitted) (quoting

Gregg v. Transp. Workers of America Int’l, 343 F.3d 833, 845–46

(6th Cir. 2003)). “Regardless of the precision of his questions,

once a beneficiary makes known his predicament, the fiduciary

‘is under a duty to communicate ... all material facts in

connection with the transaction which the trustee knows or

should know.’” Id. at 467 (alteration in original) (quoting

Restatement (Second) of Trusts § 173, cmt. d (1959)).

If “the plan documents are clear and the fiduciary has

exercised appropriate oversight over what its agents advise

plan participants and beneficiaries as to their rights under

those documents, the fiduciary will not be held liable simply

because a ministerial, non-fiduciary agent has given

incomplete or mistaken advice to an insured.” Id. at 472.

Nevertheless, if a fiduciary “suppl[ies] participants and

beneficiaries with plan documents that are silent or ambiguous

on a recurring topic, the fiduciary exposes itself to liability for

the mistakes that plan representatives might make in

answering questions on that subject.” Id.

In the present case, we cannot say that the pertinent plan

documents were clear and complete as to which service

providers were in Mrs. Killian’s network. The Killians never

have received a summary plan description, which must

contain “the composition of the provider network,” 29 C.F.R.

§ 2520.102-3(j)(3), and the Master Group Policy does not 29

The summary plan description for employee health plans must include,

29

inter alia, 

(continued...)
No. 11-1112 27

identify which providers are in network. Instead, beneficiaries

are instructed to either “call the number listed on the back of

[their] medical identification card[s]” or “call[] the toll free

telephone number on [their] identification card[s]” to

determine whether a provider is in network. The situation 30

before us is therefore much like the one that we confronted in

Kenseth, where the policy documents’ only advice for

determining “whether a particular course of treatment was

covered by the ... plan was to call [the fiduciary]’s customer

service line.” 610 F.3d at 477. Here, the Master Group Policy

simply instructed participants to contact Concert before

undergoing treatment to determine whether the providers

would be in network. They were given no more direction.

Concert asserts that directing beneficiaries to call is the best

way to confirm network provider information because its list

of network providers frequently changes. We do not

necessarily disagree with Concert’s conclusion; we merely

point out that this approach made the plan documents

 (...continued) 29

provisions governing the use of network providers, [and]

the composition of the provider network, ... . In the case of

plans with provider networks, the listing of providers may

be furnished as a separate document that accompanies the

plan’s SPD, provided that the summary plan description

contains a general description of the provider network and

provided further that the SPD contains a statement that

provider lists are furnished automatically, without charge,

as a separate document. 

29 C.F.R. § 2520.102-3(j)(3). 

 R.259-3 at 15, 19.

30
28 No. 11-1112

incomplete. Consequently, Concert “expose[d] itself to liability

for the mistakes that [its] representatives might make in

answering [Mr. Killian’s] questions on that subject.” Id. at 472. 

C.

Because the instructions given in the provided plan

documents were deficient, we must examine the substance of

the telephone calls between Mr. Killian and Concert. In our

view, a reasonable trier of fact certainly could conclude that

Concert was aware (or, at the very least, that it should have

been aware) that Mr. Killian was attempting to determine

whether Rush and the physicians who were about to perform

surgery on Mrs. Killian were within Mrs. Killian’s network.

1. The First Telephone Call

The front of Mrs. Killian’s insurance card provides

telephone numbers under four different headings. The first

number is for “determin[ing] Provider participation.” This

31

was a “dedicated line” for providing “[t]he most accurate, up to

date information” regarding provider participation. Because

32

this line was dedicated to informing beneficiaries whether

providers were in network, Concert knew (or, at the very least,

should have known) that beneficiaries would call this line to

determine a provider’s network status. As such, when a

 R.82-7 at 2. 31

 R.259-5 at 10 (emphasis in original).

32
No. 11-1112 29

beneficiary calls this number, Concert “‘has an obligation to

convey complete and accurate information material to

[provider participation status], even if that requires conveying

information aboutwhich the beneficiary did not specifically inquire,’”

Kenseth, 610 F.3d at 466 (emphasis in original) (quoting Gregg,

343 F.3d at 845–46), “[r]egardless of the precision of his

questions,” id. at 467. 

Mr. Killian called this number on April 7, 2006. After

providing Mrs. Killian’s name and card number, he said, “we

are here for a second opinion and she is going—they want to

admit her because we already determined the tumor has to

come off.” R.253 at 72; see also id. at 125 (“I said she was being

admitted to the hospital and they were going to do the

surgery.”). Mr. Killian referred to Rush as “St. Luke’s,” the

name that he always had used for this hospital. The Concert

representative said that she was unable to find a listing under

that name and instructed Mr. Killian to “[g]ive [her] a call

back.” She also said that Mrs. Killian should “go ahead with 33

whatever had to be done.” Although the representative did

34

not state directly that Rush was in Mrs. Killian’s network, a

reasonable trier of fact could conclude that this representative

failed “to convey complete and accurate information material

to [Mrs. Killian]’s circumstance.” Kenseth, 610 F.3d at 466

(internal quotation marks omitted). Mr. Killian at one point

testified that he and the representative “never determined

 R.253 at 72. 33

 Id. at 124–25. 

34
30 No. 11-1112

anything,” during this telephone call. However, he also 35

testified that, at the end of the two calls, he believed that

Mrs. Killian’s surgery would be covered “[b]ecause nobody

ever said these [providers] are out-of-network.”36

Taking these facts in the light most favorable to Mr. Killian

for purposes of summary judgment, a reasonable trier of fact

could conclude: (1) that Mr. Killian was concerned about

whether the providers were in network; (2) that Mr. Killian

called the number that Mrs. Killian’s insurance card said

should be used to determine provider participation to resolve

this question; (3) that the representative knew that Mr. Killian

was seeking this information; (4) that the representative told

Mr. Killian to “go ahead with whatever had to be done,” even

though she knew that she had not been able to establish the

provider’s network status; and (5) that Mr. Killian left that

telephone call believing that Mrs. Killian could “go ahead with

whatever had to be done” because he had followed the

instructions on Mrs. Killian’s insurance card, was told to do so

and received no warning that the “go ahead” was not to be

understood as an authorization. Mr. Killian’s testimony is

susceptible to the interpretation that, during the stress of the

moment, he believed that he could rely on the representative’s

instruction to “go ahead.” Mr. Killian “should not be penalized

because he failed to comprehend the technical difference

between ‘[go ahead]’ and ‘[the provider is in network].’ The

same ignorance that precipitates the need for answers often

 Id. at 72.

35

 Id. at 136. 36
No. 11-1112 31

limits the ability to ask precisely the right questions.” Kenseth,

610 F.3d at 467. A finder of fact would be entitled to conclude

that, at the very least, the representative should have

instructed Mr. Killian that she was unable to locate an entry in

her system for “St. Luke’s” and that she could make no

representations at that time as to whether the provider was in

network. 

The fact that Mr. Killian made a second call does not

necessarily negate his claim of reliance on the instruction to

“go ahead.” Mr. Killian testified that, in making the second

telephone call, he was calling “for preadmission,” as he was

instructed to do by Mrs. Killian’s insurance card. The card 37

said that “[e]mergency admissions must be certified within 48

hours” and that this second number should be used to obtain

the necessary “UTILIZATION REVIEW.” Taking these facts 38

in the light most favorable to Mr. Killian, a reasonable trier of

fact could conclude that Mr. Killian made the second call to

obtain the required “certification,” or “UTILIZATION

REVIEW,” for his wife’s surgery. Having just learned that the

surgical procedure was necessary for his wife to live longer

than a few days, a reasonable trier of fact could conclude that 39

Mr. Killian believed this was an emergency procedure for

which he was not required to obtain precertification seven

days in advance. 

 Id. at 73–74. 37

 R.82-7 at 3. 38

 R.253 at 127–28. 39
32 No. 11-1112

2. The Second Telephone Call

When Mr. Killian made the second telephone call, he dialed

the second, and most prominent, number on the front of

Mrs. Killian’s insurance card, which was for customer service,

as well as for utilization review. As noted earlier, this was the

same number listed on the back of the card for utilization

review and medical claims. There is evidence that Concert had

encouraged beneficiaries to use this number for determining

provider participation as well. Specifically, in the Master

Group Policy, Concert instructed beneficiaries that they “must

call the number listed on the back of [their] medical

identification card” in order “[t]o confirm that ... [a] provider

is a CURRENT participant in [the beneficiary’s] provider

Network.” The back of Mrs. Killian’s insurance card provides 40

two different telephone numbers under three separate

headings: the customer service number from the front of the

card is provided twice; a vision benefits number is provided

once. A beneficiary who seeks to confirm that a hospital is in

41

network by “calling the number listed on the back” of his

insurance card must call either the number Mr. Killian called

or the number for the “Vision Service Plan,” which clearly was

inapplicable to the Killians’ situation. Therefore, Concert

arguably should have known that beneficiaries such as

Mr. Killian would be calling this line to determine whether

certain providers were in their network. 

 R.259-3 at 15 (emphasis added). 

40

 R.82-7 at 3. 41
No. 11-1112 33

Moreover, the second number that Mr. Killian called was

the correct, and apparently the only, number that he could call

to obtain the required certification review with respect to the

particular surgical procedure that his wife was about to

undergo. Given his earlier telephone conversation, a

reasonable trier of fact certainly could conclude that any

further information as to whether the providers were in

Mrs. Killian’s network would have been provided in the course

of this conversation regarding the authorization of the

particular procedure.

Indeed, under these circumstances, Concert had an

affirmative obligation to inform Mr. Killian that the providers

Mrs. Killian was about to see were out of network. See Kenseth,

610 F.3d at 466 (“[T]he trustee is under a duty to communicate

to the beneficiary material facts affecting the interest of the

beneficiary which he knows the beneficiary does not know and

which the beneficiary needs to know for his protection in

dealing with a third person.” (internal quotation marks

omitted)). On this record, a rational trier of fact could conclude

that this second representative was aware that Mr. Killian’s

telephone calls were an effort to confirm two points: (1) that

the health care providers treating his wife were within the

Plan’s network; and (2) that the particular procedures

contemplated for her care were authorized by the Plan. In this

second call, Mr. Killian stated: “I’m trying to get confirmation

that we are going to be—my wife is going to be admitted to

Rush.” The representative laughed, said, “Oh, you mean St. 42

Luke’s,” and seemed to speak to a person sitting next to her.

 R.253 at 73. 42
34 No. 11-1112

The second representative then informed Mr. Killian that the

hospital is known as “Rush Presbyterian.” At some point, 43

Mr. Killian said, “Susan is going to be admitted,” and the

representative said “[o]kay.” From her laughter and attempt 44

at humor, a reasonable finder of fact well might conclude that

this second representative knew something about Mr. Killian’s

prior call. It would be reasonable to infer that this

representative knew that Mr. Killian had attempted to

determine whether “St. Luke’s” was in Mrs. Killian’s network

during Mr. Killian’s prior call to the number for determining

provider participation. 

It is true that when Mr. Killian called Concert, provided

Mrs. Killian’s policy number, told Concert where they were

and said that Mrs. Killian needed immediate brain surgery, he

did not also ask the specific question, “Is Rush an in-network

provider?” However, neither the Master Group Policy nor our

holding in Kenseth requires beneficiaries to ask such a specific

question. The Master Group Policy simply told Mr. Killian to

call a number on the insurance card, which he did twice.

Under Kenseth, the fiduciary’s duty to provide complete and

accurate information, even if the beneficiary does not

specifically inquire, is triggered when the beneficiary makes

the ERISA fiduciary “aware of the beneficiary’s status and

situation.” 610 F.3d at 466 (internal quotation marks omitted).

A rational factfinder could conclude that Mr. Killian put

Concert on notice of his status and situation. The first Concert

 Id.

43

 Id.

44
No. 11-1112 35

representative’s attempt to locate “St. Luke’s” suggests that she

was aware of his need to determine Rush’s network status, and

the second representative’s comments suggest that she was

aware of the earlier call to the network provider number.

45

The dissent argues that it is impossible for Mr. Killian to ever have called 45

the provider participation line because, it asserts, the only way for the

second representative to have had knowledge of Mr. Killian’s prior call is

if Mr. Killian called the customer service number both times. There are a

few problems with this theory. 

First, this assumption, while plausible, is not a fact that we can assume

in Concert’s favor at summary judgment. Concert’s vice president of

operations testified that “the network” operates the 800 number for

determining provider participation, R.115-3 at 200, but he did not testify as

to whether Concert and “the network” share facilities or employees and any

presumptions must be made in Mr. Killian’s favor. Representations made

by counsel at oral argument that Concert and PHCS do not share employees

and that telephone calls to each line are directed to separate facilities may

be true, but on summary judgment counsel’s factual assertions at oral

argument do not substitute for record evidence.

Second, if we could assume that Mr. Killian is mistaken about which

numbers he called and that he did call the same number twice, whether

both telephone calls were made to the customer service line orthe provider

participation line is a fact that must be construed in the light most favorable

to Mr. Killian. 

Finally, even if we could assume that Mr. Killian called the customer

service line both times, a factfinder still could conclude that Concert was on

notice of his need for provider network information because, as noted

above, the Master Group Policy instructed beneficiaries “[t]o confirm that

Your ... provider is a CURRENT participant ...You must call the number

listed on the back of Your medical identification card.” R.259-3 at 15

(emphasis added). The customer service/utilization review number was the

only potentially applicable number on the back of Mrs. Killian’s card. After

(continued...)
36 No. 11-1112

Nor does the summary judgment record establish that the

Killians suffered no harm. It is undisputed that the Killians

would have made an appointment with Dr. Bonomi for a

second opinion regardless of his network participation status,

but two days elapsed between the telephone calls and the

actual surgery. A rational finder of fact could conclude that the

Killians would have found another hospital or sought

emergency admission at Rush had Concertinformed them that

 (...continued) 45

directing beneficiaries seeking provider information to call “the” number

on the back of the card, Concert cannot avoid its fiduciary duties by

suggesting that Mr. Killian should have called a number on the front of the

card.

The dissent also argues that Mr. Killian never called to determine

provider network status and points to Mr. Killian’s deposition where he

testified that he told the representative that his wife wasbeing admitted and

that he called because he was supposed to call for preadmission. Dissent at

27–31. The dissent argues that because, in his deposition, Mr. Killian said

“preadmission” rather than “provider network information,” he could not

have placed the fiduciary on notice of his need for provider network

information. 

This view suggests that, contrary to our holding in Kenseth v. Dean

Health Plan, Inc., 610 F.3d 452 (7th Cir. 2010), the beneficiary must use the

exact terms as defined by the fiduciary before the fiduciary is required to

provide information, but the issue is whether Mr. Killian’s interaction with

the representatives was sufficient to put them on notice of his need for

provider network information. Although Mr. Killian used the word

“preadmission” in his deposition when telling the attorneys the purpose of

his call, he did not testify that he told the representatives that he was calling

for preadmission. His interaction with the representatives included calling

the designated number, informing the representative of his location and

telling the representative of the needed surgery.
No. 11-1112 37

Rush was out of network. Concert fails to point to any

evidence in support of its assertion that the decision to obtain

a second opinion regardless of network status necessarily

implies that the Killians would have stayed and had the

surgery performed at Rush even if Concerttold them that Rush

was out of network.46

ERISA does not require a fiduciary to set out on a quest to

uncover some kind of harm that might befall a beneficiary. But

this case requires no such expedition. It simply requires an

application of the rule, articulated in Kenseth, that an insurance

company cannot defeat a breach of fiduciary duty claim by

asserting that it was unaware that an insured was seeking

certain material plan information when the insured called two

different numbers that the insurance company itself

established to provide the sort of information in question. This

is particularly true when the representatives tell an insured to

“go ahead with whatever ha[s] to be done” while knowing (or 47

at least having reason to know) that the insured is confused

about this aspect of his plan and is about to undergo a costly

procedure that will not be fully covered. We already have held

Although Mr. Killian bears the ultimate burden at trial, “[a] party 46

seeking summary judgment bears an initial burden of proving there is ‘no

material question of fact with respect to an essential element of the

non-moving party’s case.’” MMG Fin. Corp. v. Midwest Amusements Park,

LLC, 630 F.3d 651, 657 (7th Cir. 2011) (quoting Delta Consulting Grp., Inc. v.

R. Randle Constr., Inc., 554 F.3d 1133, 1137 (7th Cir. 2009)). 

Concert deposed Mr. Killian, but never asked whether Mrs. Killian was

well enough to travel to a different hospital.

 R.253 at 125.

47
38 No. 11-1112

that summary judgment is inappropriate where the “plan

documents ... failed to explain adequately” a particular

provision and the lack of clarity “was then exacerbated by [the

fiduciary’s agents] when [the beneficiary] inquired about her

coverage.” Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 591

(7th Cir. 2000). In Kenseth, we read Bowerman to establish that

“by supplying participants and beneficiaries with plan

documents that are silent or ambiguous on a recurring topic,

the fiduciary exposes itself to liability for the mistakes that plan

representatives might make in answering questions on that

subject.” 610 F.3d at 472 (citing Bowerman, 226 F.3d at 591).

Kenseth further indicated that the principle emerging from

Bowerman is “especially true when the fiduciary has not taken

appropriate steps to make sure that ministerial employees will

provide an insured with the complete and accurate

information that is missing from the plan documents

themselves.” Id. at 472 (emphasis added).

48

The dissent points to Kenseth for the proposition that “Concert cannot be

48

liable for a breach of fiduciary duty based on the actions of a non-fiduciary

like PHCS,” Dissent at 84 n.16, but the Kenseth passage quoted is noting that

a fiduciary “cannot be held liable on the basis of respondeat superior.”

Kenseth, 610 F.3d at 465 (emphasis added). In fact, we have held that a

fiduciary can be liable for inaccurate or misleading information provided

by a nonfiduciary. See id. at 469 (holding that a fiduciary could breach its

duty by inviting inquiries and not warning beneficiaries that they could not

rely on the advice given by customer service representatives); Bowerman v.

Wal-Mart Stores, Inc., 226 F.3d 574, 591 (7th Cir. 2000) (holding a fiduciary

liable when inadequacies in the plan documents were exacerbated by

incorrect and misleading information from its agents). 
No. 11-1112 39

Conclusion

On the denial of benefits claim, we affirm the district

court’s grant of summary judgment, but remand with

directions for counsel for both sides to submit a joint

stipulation concerning whether Rush University Hospital, Dr.

Barnes and Dr. Bonomi were within Mrs. Killian’s provider

network. If counsel are not able to agree on a conclusive

stipulation, the district court should resolve this issue on

remand.49

On the breach of fiduciary duty claim, we affirm in part and

reverse in part the judgment of the district court. We affirm the

district court’s grant of summary judgment in favor of Royal

Management and Concert with respect to their failure to

provide Mrs. Killian with a summary plan description.

Consonant with this opinion, we reverse the grant of summary

judgment on the breach of fiduciary duty claim with respect to

Mr. Killian’s telephone call inquiries and remand to permit the

trier of fact to determine: (1) whether the telephone calls put

Concert on adequate notice, thus giving rise to a duty to

disclose material information related to the Killians’ situation,

(2) whether Concert breached this duty and (3) whether the

breach harmed Mr. Killian.50

 This is the result reached by the panel. Killian I, 680 F.3d at 764. 49

On remand, the district court also must address the type of remedy 50

available under ERISA. ERISA provides for equitable relief for breach of

fiduciary duty claims, see 29 U.S.C. § 1132(a)(3); the Supreme Court recently

has suggested that equitable relief can include monetary payments through

estoppel and “surcharges,” see CIGNA Corp. v. Amara, 131 S. Ct. 1866, 1880

(continued...)
40 No. 11-1112

On the statutory damages issue, we remand the matter to

the district court to permit a recalculation of the award as

outlined in the panel’s opinion.

We grant Mr. Killian’s motion to proceed as administrator

of his wife’s estate as well as in his individual capacity.

IT IS SO ORDERED.

 (...continued) 50

(2011).
No. 11-1112 41
42 No. 11‐1112

POSNER, 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. But
44 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 contract
46 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 the
48 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 Contracts
No. 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

EASTERBROOK, 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 not
No. 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

MANION, Circuit Judge, with whom SYKES, Circuit Judge,

joins, concurring in part, dissenting in part.

Susan and James Killian were understandably distraught

when they learned in early April 2006 that Susan had lung

cancer, that it had spread to her brain, and that the brain

tumors were inoperable. It is also only natural that their

thoughts were focused on Susan’s health and finding a doctor

able to operate and remove the tumors, and not on the terms

of Susan’s health insurance plan. And so the Killians did not

inquire in advance whether her doctors or Rush University

Medical Center were within her health care network; because

it turned out that they were not, Susan incurred liability of

approximately $80,000 in medical expenses. James believed

Concert Health Plan Insurance Company (“Concert”) and

Royal Management, her employer and the plan administrator,

should be liable for those expenses because when he called to

inform Concert that Susan was being admitted for brain

surgery, the Concert representatives did not inform him that

the medical providers were out-of-network. Accordingly, on

August 22, 2007, on behalf of Susan’s estate, James filed suit

against Concert and Royal Management under ERISA for

denial of benefits, breach of fiduciary duty, and for statutory

damages. In addition to statutory damages, James sought

equitable relief in the form of payment for (or a direction to

pay), the outstanding medical bills owed the Rush providers.

Over the course of the last six years, the parties, the district

court, and this court have expended significant resources

exploring the scope of ERISA’s fiduciary obligations and the

network status of the Rush providers. During that time, the

administration of Susan’s estate was completed and the estate
No. 11-1112 55

was closed and James inherited Susan’s rights in this litigation.

The court was belatedly notified of this development and the

parties did not consider its import, leaving the court to direct

the parties to file supplemental briefing on the question of

whether the closing of Susan’s estate mooted this appeal. In

response, James reopened the estate but “solely forthepurpose

of probating the ERISA clam and prosecuting the claim in the

District Court and 7th Circuit Court of Appeals.” R.58-2. The

issue, though, was never whether James could continue to

prosecute Susan’s ERISA claims which he inherited in his

individual capacity. He clearly could—if the relief sought

would make a difference to the legal interests of the parties. But

it won’t, at least for the denial of benefits and breach of

fiduciary duty claims. Both those claims sought as relief

payment of the outstanding medical bills. However, neither

Susan nor her estate ever paid those bills. Now that her estate

is closed for all purposes except prosecution of this case and

the statutory time period for recovering from a decedent (and

James for that matter) has passed, there is no longer any

liability to the Rush providers. Thus, while an order to pay

those bills would benefit third-party non-litigants who no

longer have a claim against the estate, i.e., the Rush providers,

such relief would not make a difference to the legal interests of

Susan’s estate, since there is no longer any liability for those

medical bills. What we have then is an advisory opinion on the

merits of the denial of benefits and breach of fiduciary duty

claims because the asserted harm no longer exists. If those

claims were not moot, I would agree that remand would be

appropriate on the denial of benefits claim, but that, for several

reasons, Susan’s breach of fiduciary duty claim cannot succeed.
56 No. 11-1112

The statutory damages claim, though, remains a live controversy because Susan’s entitlement to those damages now

resides with James, her beneficiary, and remand on that claim

is appropriate. Accordingly, I CONCUR IN PART AND

DISSENT IN PART.

I. BACKGROUND

The en banc court recounts the sad facts in this case. In brief,

in February 2006, Susan Killian saw her primary care physician

because she was suffering from persistent headaches and a

severe cold. Her doctor ordered a CT scan, which revealed that

Susan had lung cancer that had spread to her brain. She was

admitted to Delnor Community Hospital for five days, but was

told that her brain tumors were inoperable and she was

discharged. Susan and her husband James decided that she

should seek a second opinion and they turned to Dr. Bonomi.

Dr. Bonomi had previously treated Susan’s daughter as well as

Susan’s fiancé, both of whom unfortunately died of cancer. R.

115-3 at 28, 31.

After her release from Delnor, Susan scheduled an appointment with Dr. Bonomi for April 7, 2006. Dr. Bonomi directed

Susan to first meet with a neurosurgeon, Dr. Louis Barnes.

Prior to Susan’s appointments with Dr. Bonomi and Dr.

Barnes, James made no attempt to determine whether the

doctors were in the PHCS Open Access Network, which was

the network applicable to Susan’s health insurance plan with

Concert. James testified that he did not know whether Susan
No. 11-1112 57

had made any calls or had reviewed the website for a list of

network providers . R.115-3 at 30–31, 121. 1

On April 7, 2006, Susan met with Dr. Barnes and he told her

that one of her tumors needed to be removed immediately or

she would be dead within five days. Based on Dr. Barnes’

prognosis, Susan decided to have the tumor removed. While

she was being admitted to Rush Hospital, James telephoned

Concert. Although the en banc court states that James “first

called the ‘provider participation’ number listed on the front of

Mrs. Killian’s insurance card,” Opinion at 6, as discussed in

more detail below,the record does not support that conclusion;

rather, the record shows that James placed two telephone calls

to Concert’s customer service/utilization review number. See

infra at 79–87. And when asked why he called Concert on April

7, James said twice in his deposition that he called Concert to

tell them Susan “was going to be admitted to a hospital.”

R.115-3 at 71–73. 

Doctors removed the brain tumor on April 10 and Susan

was released from the hospital on April 12, 2006. R.77-5 at

55–56. She received additional outpatient services from Dr.

Bonomi and attempted chemotherapy, but could not tolerate

it. In June 2006, Susan was admitted to Rush for nine days to

be treated for pneumonia. She died two months later. 

James was not insured under Susan’s health insurance policy and was not 1

involved in Susan’s decision to enroll in the Concert health care option

“SO35 Open Access,” which used the PHCS Open Access network. R.115-3

at 15–16, 19–20. James also did not know what information Susan had

received upon enrolling in the Concert plan. R.115-3 at 19; 138–139.
58 No. 11-1112

After Susan’s surgery and prior to her death, Susan began

receiving bills fromthevariousRush providers for outstanding

balances related to the brain surgery . In total, the Rush 2

providers continued to bill Susan for approximately $80,000 in

medical expenses. Contrary to the court’s statement that

Concert stated it would not cover services at Rush, Opinion at

8, Concertdid not deny Susan coverage for the various services

related to her brain surgery at Rush; rather, it paid those claims

pursuant to the policy’s out-of-network formula. R.115-3 at

263, 270; R.41-18 at 1. In total, Concert paid approximately

$17,500 in medical expenses related to Susan’s surgery at Rush.

R. 41-11 at 1, 2, 7. Moreover, while the providers continued to

bill Susan for approximately $80,000-plus in medical expenses,

the great disparity between the amount paid by Concert

($17,500) and the remaining amount owed by Susan (approximately $80,000) resulted not from an astonishingly low

percentage covered by the insurance company for out-ofnetwork expenses, but from the fact that the out-of-network 3

providers charged a much higher rate for their services than

Concert believed was reasonable, that is, the “maximum

allowable fee.” Specifically, Concert paid out-of-network

providers for services rendered based on the Medicare

Resource-Based Relative Value Scale. R.77-3 at 22; R.41-18 at 1.

And unlike in-network providers, out-of-network providers

Specifically, Susan continued to receive bills from Rush University, 2

UniversityAnesthesiologists, and Chicago Institute of Neurosurgery. R.218-

6 at 1.

The Concert policy covered 50% of out-of-network expenses for hospital- 3

izations, subject to the maximum allowable fee. R.259-5 at 3.
No. 11-1112 59

had not agreed to accept the insurance company’s payment as

full payment for services. Rather, out-of-network providers

could continue to bill a patient at whatever rate they deemed

appropriate, which, in Susan’s case, resulted in her owing the

Rush providers approximately $80,000.4

Susan could have avoided these high out-of-pocket

expenses had she opted for better coverage through a different

Concert health care plan offered by her employer, namely one

which used the PHCS-PPO network. The Rush providers were

in-network for the PHCS-PPO network. R.115-3 at 250. But the

Concert plan which used the PHCS-PPO network ofphysicians

wasmore expensive andwould have cost Susan approximately

50% more in premiums. R.251 at 51; R.259-3 at 80. Obviously,

when she selected the less expensive policy Susan did not

know she would soon be diagnosed with late-stage cancer and

that her preferred doctors would be out-of-network. 

At the time Susan enrolled in the Concert Health Care Plan

and selected coverage under the SO35 Open Access option,

which used the PHCS Open Access network of providers, she

was informed of these reimbursement provisions. Specifically,

Susan received an enrollment packet which included, among

other things, a Certificate of Insurance, a reminder page, a

“frequently asked questions” page, a document summarizing

her employment benefits, and her health insurance card (a

After learning of the Killians’ situation, Concert did write the Rush 4

providers on Susan’s behalf and requested that they not bill Susan for

charges above the reimbursement rate. R.77-7 at 11. The Rush providers,

though, were not contractually obligated to do so and apparently demurred

because they continued to bill Susan for the higher fee amounts. 
60 No. 11-1112

copy of which is appended to the en banc court’s opinion).

R.259-2–5. The Certificate of Insurance detailed Susan’s

coverage and, relevant to this appeal, explained in straightforward terms the difference in coverage for in-network and outof-network providers and that insureds were responsible for

any charges above the maximumallowable fee, while stressing

that “the choice of provider is Yours.” R.77-3 at 5, 11–12. It also

explained that insureds could determine the network status of

providers by calling Concert or by checking on-line. R.77-3 at

5. Additionally, it stressed the requirement that insureds notify

Concert of any hospital admissions for “pre-certification” or

“utilization” review, or incur a $1,000 penalty. R.77-3 at 11.

And finally, it explained that pre-certification review was a

determination of whether a medical service was medically

necessary and that “[p]recertification of medical necessity is

subject to the limitations, exclusions, and provisions of this

certificate ... .” R.77-3 at 23.

While the Certificate of Insurance was a comprehensive

document, spanning fifty-one pages, the enrollment packet

included much more simplified highlights for insureds,

including a two-page “Employee Benefit Summary” of the

Concert Health Plan. R.259-5 at 2, 3. This summary specified

that the SO35 Open Access network was the “PHCS Open

Access” network. Id. It then summarized the reimbursement

rates forvarious services, both in-network and out-of-network,

and informed insureds that: “Non-Network services are

subject to Maximum Allowable Fee limitations. The Patient

will be responsible for any charges over these limits.” Id.

Another one-page, large-font sheet captioned “REMINDER,

PRE-CERTIFICATION IS NEEDED FOR THE FOLLOWING
No. 11-1112 61

SERVICES,” provided a list of eleven services requiring precertification, including “hospital admission.” R.259-5 at 9. And

a separate one-page handout provided a list of important

telephone numbers and website addresses, including both the

PHCS webpage and telephone number and the Concert

webpage and telephone number. R.259-5 at 7. Finally, a onepage “Frequently Asked Questions” sheet explained that 

Concert Health Plan has partnered with PHCS

for your health plan. PHCS is the nation’s leading health care network. In order to locate a

provider in a specific region of the county, (sic),

simply go to the PHCS web site

(WWW.PHCS.COM). You will also have an

option to print out a “personalized directory”

based on the areas for which you are looking for

a provider.

R.259-5 at 8. Insureds were also directed “to confirm with the

network that the provider is still participating at the location

you have chosen” by calling PHCS at 800-242-6679. Id.

James, as administrator of Susan’s estate, eventually sued

Concert, and later, in an amended complaint, added Susan’s

former employer,RoyalManagement.The amendedcomplaint

alleged three ERISA claims: (1) denial of benefits, (2) breach of

fiduciary duty, and (3) statutory damages. The district court

granted summary judgment to the defendants on all three

claims and James, as administrator of Susan’s estate, appealed.

During the pendency of the appeal, Susan’s estate was

closed and James inherited Susan’s lawsuit. James was then

substituted in as the plaintiff. R.48-2. This court directed the
62 No. 11-1112

parties to file supplemental briefing on the question of whether

the closing of Susan’s estate mooted this litigation. In response,

James reopened Susan’s estate “solely for the purpose of

probating the ERISA claim and prosecuting the claim in the

District Court and 7th Circuit Court of Appeals.” R.58-2. He

then requested that the court substitute the estate back into the

case. R.64-1 at 2.

The en banc court, sua sponte, deemed James’s motion to

substitute himself in his capacity as administrator of the estate

as a motion to add himself in that capacity, in order to allow

James to continue to pursue this litigation both in his individual capacity and as administrator of Susan’s estate. Opinion 20

at n.26; Opinion at 40. But whether James is now prosecuting

this case in his individual capacity—having inherited the

lawsuit—or in his capacity as administrator of Susan’s estate,

is irrelevant because the underlying claims remain Susan’s

breach of fiduciary duty, denial of benefits and statutory

damages claims. 

The court concludes that those ERISA claims are not moot,

stating “there is no question that the parties have a current, live

dispute with both immediate and potential future consequences.” Opinion at 17. The court suggests four theories for

why there remains a live controversy. First, the court reasons

that the estate may have already suffered a concrete and

redressable injury by having overpaid some medical bills.

Opinion at 17–18. But as discussed below, James never argued

such a harm. Opinion at 69–70. Second, the court asserts that

since Susan’s estate has been reopened, the Rushclaims “might

be pursued now against the estate.” Opinion at 22. This

reasoning is wrong for two reasons: (1) Susan’s estate has not
No. 11-1112 63

been reopened for purposes of allowing creditors to file

additional claims against the estate, but solely for the purpose

of prosecuting this ERISA action; and (2) as James stated in his

Supplemental Reply Memorandum: “All claims against the

estate are barred by the Illinois Probate Act’s two-year limitation period, 755 ILCS 5/18-12(b). ... Thus, Rush University and

Susan Killian’s other providers cannot collect anything from

her estate.” R.64-1 at 1. The court’s third rationale for why this

case is not moot, namely that James remains directly and

personally liable on Susan’s medical bills, is equally misplaced.

Opinion at 18. James’s purported liability is unrelated to his

status as a beneficiary and thus Susan’s estate (or James,

individually as her beneficiary), cannot pursue the denial of

benefits and breach of fiduciary duty claims premised on

James’s unrelated direct and personal liability. And in any

event, James is no longer liable to the Rush providers because

the five-year statute of limitations for bringing suit against

James under the Illinois Family Expense Act, 750 ILCS 65/15,

has long since run. The court’s fourth rationale, that “the

possibility of meaningful declaratory relief supports an

exercise of jurisdiction,” is also wrong because there is no

declaratory relief that could affect the legal interests of the

parties. Accordingly, as discussed below, Susan’s estate’s

denial of benefits and breach of fiduciary duty claims are now

moot. The statutory penalty claim, though, is different because

that claim entitles Susan’s estate to monetary damages, which

James, as her beneficiary, inherits and thus that claim is not

moot.

On the merits, after concluding that Susan’s claims are not

moot, the en banc court adopts, in part, the panel decision in
64 No. 11-1112

Killian v. Concert Health Plan (Killian I), 680 F.3d 749 (7th Cir.

2012). In the panel decision in Killian I, the court affirmed the

district court’s grant of summary judgment for Royal Plan and

Concert on the denial of benefits claim, but required the parties

to stipulate concerning whether the Rush providers were in the

PHCS Open Access network. Id. at 756 n.5. The panel also

affirmed summary judgment on the breach of fiduciary duty

claim, but reversed and remanded the statutory damages claim

because the district court erred in calculating the penalty and

failed to address one of James’s arguments. Id. at 762–64. The

en banc court “adopt[s] the panel’s reasoning and conclusion

related to the denial of benefits and statutory penalties issues.”

Opinion at 3. The en banc court also agrees with the panel that

Royal Plan and Concert were entitledto summary judgment on

James’s claim that the defendants breached their fiduciaryduty

by failing to provide Susan with a summary plan description,

because James could not show that the lack of a summary plan

description caused any harm. Opinion at 13. However, the en

banc court holds that reversal on the breach of fiduciary duty

claim is appropriate because a rational finder of fact could

conclude that Concert had a fiduciary duty to inform James

that the Rush providers were out-of-network during the April

7, 2006 telephone conversations; that it breached that duty; and

that that breach resulted in harm to James. Opinion at 39. 

If Susan’s breach of fiduciary duty claim was not moot, the

defendants would nonetheless be entitled to summary judgment on the merits. A breach of fiduciary duty claim premised

on the April 7, 2006, telephone calls fails, first because James

waived any argument that the defendants breached their

fiduciary duty by not informing him, when he called, that the
No. 11-1112 65

providers were out-of-network. And the defendants did not

waive this waiver. Second, even if this theory had not been

waived, there was no breach of fiduciary duty because James

did not put Concert on notice that he was inquiring on the

providers’ network status as in-network or out-of-network

providers. Accordingly, even if this claim is not moot, the

district court’s decision granting the defendants summary

judgment on the breach of fiduciary duty should be affirmed.

The denial of benefits claim is likewise moot, but if it were not,

at this stage remanding to allow the parties to submit a

stipulation concerning the Rush providers’ network status

seems most expedient. If they are unable to do so, the district

court should resolve the dispute. Finally, I agree that remand

on the statutory penalty claims is appropriate, as the panel

decision held and as adopted by the en banc court. 

II. DISCUSSION

A. Susan’s breach of fiduciary duty and denial of benefits

claims are moot because the Killians never paid the

Rush providers and there is no longer a legal obligation

to pay those bills. Thus, there is no longer any legal

harm to Susan’s estate. 

Article III, § 2 of the Constitution grants federal courts the

authorityto adjudicate only “actual ongoing controversies.” St.

John’s United Church of Christ v. City of Chicago, 502 F.3d 616,

626 (7th Cir. 2007) (quoting Honig v. Doe, 484 U.S. 305, 317

(1988)). “For a case to be justiciable, a live controversy must

continue to exist at all stages of review, not simply on the date

the action was initiated.” Brown v. Bartholomew Consol. School

Corp., 442 F.3d 588, 596 (7th Cir. 2006). Thus, “[i]t has been
66 No. 11-1112

firmly established that an appeal should be dismissed as moot

when, by virtue of an intervening event, a court of appeals

cannot grant any effectual relief whatever in favor of the

appellant.” A.B. ex rel. Kehoe v. Hous. Auth. of South Bend, 683

F.3d 844, 845 (7th Cir. 2012) (internal quotation omitted).

Moreover, “[a]lthough neither party has urged that this case is

moot, resolution of the question is essential if federal courts are

to function within their constitutional sphere of authority.”

North Carolina v. Rice, 404 U.S. 244, 246 (1971). Accordingly,

“mootness, like standing, is always a threshold jurisdictional

question that we must address even when it is not raised by

the parties.” Wernsing v. Thompson, 423 F.3d 732, 745 (7th Cir.

2005) (internal quotation omitted).

Under this framework, Susan’s denial of benefits and

breach of fiduciary duty claims are moot. At the time that

James, as administrator of Susan’s estate, filed suit, Susan’s

estate allegedly owed approximately $80,000 in medical bills

to the Rush providers. Killian I, 680 F.3d at 758. Since then,

Susan’s estate had been closed. Actually, Susan’s estate had

been closed in August 2011—prior to both the oral argument

and the release of the panel’s decision in Killian I—but the

court was not informed of this development until September

2012, when James filed a motion to substitute himself as

plaintiff. R.48-2. In that motion, James explained that the only

asset of Susan’s estate was the underlying ERISA claim, that

Susan’s estate had been closed, and that that asset had been

transferred to him. Attached to that motion were the state

court orders confirming these facts. Id. This court granted the

motion and substituted James as the plaintiff.
No. 11-1112 67

Basedon these developments, this court directedtheparties

to file supplemental briefing on the question of whether the

closing of Susan’s estate mooted this litigation. Specifically, the

court directed the parties to discuss “with particularity

whether Mr. Killian retains any interest in obtaining relief and

whether the relief sought by Mr. Killian will make a difference

to his legal interests.” R.53. In response, James reopened

Susan’s estate “solely for the purpose of probating the ERISA

claim and prosecuting the claim in the District Court and 7th

Circuit Court of Appeals.” R.58-2. He then requested that this

court substitute the estate back into the case. R.64-1 at 2. The

court deemed this a request to add him in his capacity as

administrator of Susan’s estate, leaving James to pursue this

litigation in that capacity and in his individual capacity.

Opinion 20 at n.26; Opinion at 40. 

The court asserts James’s reopening of the estate resolves

the mootness question because theunpaid medical bills “might

be pursued now against the estate.” Opinion at 22. According

to the court: “In light of the reopening of the estate, the

contention in Judge Manion’s dissent ... that there is no

possibility of recovery of the medical bills from the estate, and

therefore no apparent harm to the estate, is not demonstrably

correct.” Opinion at 20. But the estate was reopened “solely for

the purpose of probating the ERISA clam and prosecuting the

claim in the District Court and 7th Circuit Court of Appeals.”

R.58-2. Thus, the estate is not open for purposes of allowing

third-party creditors, such as the Rush providers, to seek

recovery from the estate for medical expenses. 

Nor is there any possibility that the Rush providers could

still reopen the estate and recover on the unpaid medical bills.
68 No. 11-1112

As James stated in his Supplemental Reply Memorandum: “All

claims against the estate are barred by the Illinois Probate Act’s

two-year limitation period, 755 ILCS 5/18-12(b) ... Thus, Rush

University and Susan Killian’s other providers cannot collect

anything from her estate.” R.64-1 at 1. James is correct. Section

18-12(b) provides that “[u]nless sooner barred under subsection (a) of this Section, all claims which could have been barred

under this Section are, in any event, barred 2 years after

decedent’s death, whether or not letters of office are issued

upon the estate of the decedent.” 755 ILCS 5/18-12(b). “The

filing of a claim within the period specified by section 18-12 is

mandatory.” In re Estate of Hoheiser, 424 N.E.2d 25, 28 (Ill. App.

Ct. 1981). And the failure to file a claim within this statutory

period is a bar to recovery, even if the executor had personal

knowledge of the claim. Id. Further, “where a legal claim

should have been, but was not, filed against an estate within

the statutory period, relief will not be accorded by the application of equitable principles.” In re Estate of Ito, 365 N.E.2d 1309,

1311 (Ill. App. Ct. 1977). In short, “[n]o exception to the filing

period may be engrafted by judicial decision.” Id. In fact, “[a]

probate court cannot authorize an administrator to pay a claim

after the claim has been barred from payment under the

statute. To authorize payment under these circumstances

would in effect nullify the provision in the statute.” Messenger

v. Rutherford, 225 N.E.2d 25, 94 (Ill. App. Ct. 1967) (internal

citation omitted). 

In this case, Susan died in August 2006 owing the Rush

providers approximately $80,000 in unpaid medical bills.

Susan, though, never paid those medical expenses and Illinois’s two-yearlimitations period now bars any attempt by the
No. 11-1112 69

Rush providers to reopen and collect on those unpaid bills .

5

Without exception. See supra at 68. And the probate court lacks

authority even to authorize James, as administrator, to pay

those claims. Accordingly, there is no possibility that Susan’s

estate remains liable on the unpaid medical bills. 

The court also reasons that this case is not moot because the

estate has already suffered a concrete and redressable injury,

namely that the Killians were injured by overpaying medical

bills representing co-pay, coinsurance, and annual deductible

amounts, which would have been lower had the services been

obtained from an in-network provider. Opinion at 17–18.

However, James has never claimed, including in his response

to the court’s request for supplemental briefing, that they

overpaid any of the medical providers because of the defenThe court relies on Schloegl v. Nardi (In re Estate of Perrine), 234 N.E.2d 558, 5

561 (Ill. App. Ct. 1968), for the proposition that “[i]n Illinois, the fact that an

estate is closed may, but does not necessarily, preclude creditors from

bringing claims against it.” Opinion at 20-21. The court notes that subsequent cases have distinguished Schloegl, but that none of those cases

“rejected its conclusion that a claim may be brought against an estate if the

time for bringing such claims hasnot expired.” Opinion at 21. Schloegl is not

relevant to the case at hand because Schloegl involved a claim brought

within both the governing statute oflimitations and the probate’s limitation

period. But in this case, the Rush providers did not file a claim within the

probate act’s two-year limitations period, as required by Section 18-2.

Illinois law is clear that Section 18-2 “imposes additional time constraints for

making certain claims against a decedent’s estate.” Vaughn v. Speaker, 533

N.E. 2d 885, 888 (Ill. 1988) (emphasis in original). And a “court has no

power or jurisdiction to entertain a petition against an estate after the

statutory period has passed.” In re Marriage of Epsteen, 791 N.E.2d 175, 185

(Ill. App. Ct. 2003).
70 No. 11-1112

dants’ purported ERISA violations. Rather, James has

always maintained that the harm Susan’s estate suffered as a

result of the breach was that Susan incurred about $80,000 in

unpaid medical bills. 

The court’s third rationale for why this appeal is not moot

is that “Mr. Killian’s financial affairs are burdened with real

uncertainty. ...” Opinion at 22. Here, the court notes that there

is a “sufficiently real possibility that the additional debts may

come Mr. Killian’s way,” Opinion at 20, and finds “Mr.

Killian’s personal liabilities on Mrs. Killian’s debts” relevant.

Opinion at 24 n.28. There are two problems with this reasoning. 

First, Susan’s estate brought this litigation to obtain relief

on Susan’s ERISA claims. The court acknowledges that the

claim is “Mrs. Killian’s claim,” but adds that James “inherited

it, and, in any event, the consequence of the resolution of the

dispute, whateverit may be, falls to him alone.” Opinion at 19.

But James did not inherit Susan’s obligation to pay Rush;

Susan’s estate never paid those bills; and those debts did not

reduce the assets that James inherited—there were none. Thus,

the alleged harm did not somehow flow to James as part of the

probate process. 

What the court is doing is conflating the legal interests of

Susan’s estate (which James inherited), and James’s unrelated

individual interests, reasoning that “the dispute in this case

always has been one between Mr. Killian and the defendants

over his wife’s coverage and their family’s resulting liability on

third-party medical debts.” Opinion at 18. While the dispute

underlying this litigation may have always been one between
No. 11-1112 71

James and the defendants, the litigation has always been 6

between Susan’s estate and the defendants. Or as the court

explained “[t]he estate is and has always been a construct to

resolve this dispute.” Opinion at 19. Accordingly, only those

harms which an estate may litigate are relevant. This is a

question of standing which concerns the fundamental constitutional limits of this court. Perry v. Sheahan, 222 F.3d 309, 313

(7th Cir. 2000).

What then are the harms an estate may litigate? The

administrator of an estate may prosecute claims on behalf of a

deceased plaintiff’s estate which ultimately benefit “the heirs

and any other claimants to the estate, such as his creditors.” See

Anderson v. Romero, 42 F.3d 1121, 1123 (7th Cir. 1994). It is true

that should the estate prevail on the denial of benefits and

breach of fiduciary duty claims, James, who is the estate’s

beneficiary, will benefit. But he will not benefit as a beneficiary.

This point is clear if one considers what would happen if James

were not a beneficiary of Susan’s estate. James’s purported

liability for the medical expenses due the Rush providers is

based on the Illinois Family Expense Act. The Illinois Family

Expense Act provides that spouses are jointly and severally

liable for each other’s medical expenses whether or not they

are living together or separately. Mercy Ctr. for Health Care Serv.

In stating that the dispute in this case has always been between James

6

and the defendants, the court incorrectly posits that “the creditors appear

to have pursued the path of least resistance and billed Mr. Killian directly.”

Opinion at 18–19. There is no evidence in the record, though, to support this

assumption; in fact, all of the bills, and later the various demand letters

from collection agencies, were addressed to Susan Killian, not James. See,

e.g., R.77-4, R.77-3 at 59. 
72 No. 11-1112

v. Lemke, 557 N.E.2d 943, 963–63 (Ill. App. Ct. 1990). If James

were not a beneficiary or heir of Susan’s estate (maybe because

of a divorce subsequent to the provision of medical expenses),

James would still “benefit” by the estate obtaining an order to

pay the Rush providers given that he would have joint liability

under the Act. But the benefit to James would not be because

of his status as a beneficiary of the estate. Thus, the court is

wrong to rely on “persisting uncertainties concerning the

future liability of the estate and its beneficiary” to find this case

not moot, Opinion at 24, because there is no future liability of

James qua beneficiary. And the court’s other explanation for

why the estate can seek a remedy for a direct and personal

harm to James, namely that James stands before this court as

“husband,” is incorrect. Opinion at 20 n.26. James may now

stand before this court in his individual capacity, but the

claims remainSusan’s underlying breach of fiduciary duty and

denial of benefits claims. Id.7

The statutory penalty claim is a different matter. That claim

allows for monetary damages. Consequently Susan’s estate

(and James individually) can continue to litigate that claim on

behalf of James because as a beneficiary James is entitled to

receive those statutory damages. 

A more difficult question is whether an estate has standing to litigate a 7

breach of contract claim solely for the benefit of a third-party beneficiary of

that contract. The defendants argue that James is not a beneficiary of the

Concert Health Plan and therefore the estate cannot litigate on his behalf.

The court, though, does not rely on a third-party beneficiary theory to

justify the estate’s standing to litigate a purported harm to James. And such

a theory surely would not extend to a breach of fiduciary duty claim.
No. 11-1112 73

The entire premise that there is a "sufficiently real possibility that the additional debts may come Mr. Killian’s way" is

also wrong. In response to this court’s request for supplemental briefing, James identified only one basis for personal

liability—the Illinois Family Expense Act, 750 ILCS 65/15,

which as noted above creates joint and several liability for

spouses’ medical expenses. Because the IllinoisFamily Expense

Act does not have its own statute of limitations, the catch-all

five-year limitation period applies. See 735 ILCS 5/13–205

(2010); Pope v. Kaleta, 234 N.E.2d 109, 114 (Ill. App. Ct. 1967).

Susan’s brain surgery at Rush occurred in April 2006 and yet

the Rush providers have not initiated litigation against James,

so, now—2013—any claims by them against James would be

time-barred. Thus, any liability, and in turn harm, that James

might have suffered no longer exists . Accordingly, even if it

8

were appropriate to consider a harm to James in assessing

whether Susan’s estate’s denial of benefits and breach of

fiduciary duty claims are moot, there is no such harm to James.

James may well wish that the Rush doctors receive additional compensation for their services and may desire vindication for the wrong he perceives. But the test for mootness “is

whether the relief sought would, if granted, make a difference

to the legal interests of the parties (as distinct from their

psyches, which might remain deeply engaged with the merits

 The court notes that limitations periods may be tolled “if the party to be

8

charged makes a partial payment, or new written promise to pay.” Opinion

at 21–22 (citations omitted). James turned over during discovery the

documents related to the unpaid Rush bills. These documents showed no

partial payments and no written promise to pay.
74 No. 11-1112

of the litigation).” Air Line Pilots Ass'n, Int’l v. UAL Corp., 897

F.2d 1394, 1396 (7th Cir. 1990). And in this case, the relief

sought, namely payment of the outstanding medical bills, no

longer makes a difference to the legal interests of Susan’s estate

because the estate is not liable for the outstanding medical

bills; the Rush creditors no longer have a right to payment

from the estate; and James is no longer liable to the Rush

providers. 

Finally, the court reasons that this case is not moot because

of “the possibility of meaningful declaratory relief ... .”

Opinion at 23. The court, though, does not explain what such

relief would be, other than suggest that it could be something

that relieves James of his personal liabilities on Susan’s claims.

Opinion at 24 n.28. But as discussed above, the estate cannot

seek relief in favor of James for his direct and personal liability

and in any event there is no such potential liability. Thus, there

is no declaratory relief for the purported denial of benefits and

breach of fiduciary duty claims that could affect the legal

interests of Susan’s estate, its creditors, or its beneficiary qua

beneficiary.

9

In sum, Susan’s estate sued the defendants alleging a denial

of benefits and breach of fiduciary duty under ERISA, asserting as the harm unpaid medical bills totaling approximately

$80,000. But now there is no remaining liability on those claims

 I believe the record makes clear that these claims are moot. However, if

9

there were any question of mootness, the appropriate course of action

would be to remand to the district court for the record to be clarified on the

question of mootness, without the court addressing the merits ofthe claims.

See Rice, 404 U.S. at 248.
No. 11-1112 75

for Susan’s estate, for creditors, for James qua beneficiary, or

even for James individually. These facts moot Susan’s estate’s

claim because “there is no possible relief which the court could

order that would benefit the party seeking it.” In re River West

Plaza-Chicago, LLC, 664 F.3d 668, 671 (7th Cir. 2011) (internal

quotation omitted) (emphasis added). This court has held

claims pending on appeal are mootin analogous situations. For

instance, when a restitution order was paid by another party

while the appeal was pending, this court held that the appeal

was moot because “[w]e cannot relieve [a party] of an obligation that has already been extinguished by another party.”

United States v. Balint, 201 F.3d 928, 936 (7th Cir. 2000). See also

Wegscheid v. Local Union 2911, Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., 117 F.3d 986, 990 (7th

Cir. 1997) (“[A] suit cannot be maintained in a court created

under Article III of the Constitution, however egregious the

defendant’s conduct, unless the decision would affect the

tangible interests of the suit. A decision of this appeal, given

that the suitors have obtained all the relief that they need to

protect themselves ... could not have such an effect.”) (emphasis in original). Here, the obligation to pay has been extinguished by operation of law and not by an act of another party,

but the end result is the same. There is no longer a legal

obligation to pay and thus a court order would not bestow on

Susan’s estate, its creditors, or its beneficiary qua beneficiary,

a legal benefit. See Stevens v. Hous. Auth. of South Bend, Ind., 663

F.3d 300, 306 (7th Cir. 2011) (“A case is moot when a plaintiff

no longer has a legally cognizable interest in the outcome.”).

Accordingly, the denial of benefits and breach of fiduciary

duty claims are now moot, but the statutory penalty claim
76 No. 11-1112

remains a live controversy because it allows for money

damages.

B. James waived any breach of fiduciary duty claim

premised on the two April 7, 2006, telephone calls to

Concert and the defendants did not waive that waiver.

Before the district court, James argued that the defendants

had breached their fiduciary duty to him by failing to provide

a summary plan description. The district court granted the

defendants summary judgment on this claim. James then filed

a motion to reconsider, arguing for the first time that the

defendants also breached their fiduciary duty by not informing

him of the out-of-network status of the Rush providers during

his April 7, telephone conversations with Concert. The district

court denied James’s motion to reconsider, holding that it was

too late to raise an argument premised on the April 7 telephone

conversations.

By not presenting a timely argument to the district court

premised on the April 7 telephone calls, James waived any

argument that the defendants breached their fiduciary duty

based on those telephone calls. Publishers Res., Inc. v. WalkerDavis Publ’ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985) (holding

that a litigant who fails to raise an argument in opposition to

a properly raised motion for summary judgment will not be

permitted to raise that same argument later, either in a motion

for reconsideration or on appeal). The en banc court, though,

holds that the defendants waived James’s waiver by failing to
No. 11-1112 77

assert waiver in this court . Opinion at 11 n.22. But the 10

defendants had no reason to assert waiverin this court because

James did not develop a breach of fiduciary duty argument in

his appellate briefs premised on the April 7 telephone calls.

Therefore, the defendants did not waive Killian’s waiver.

Moreover, while a party can waive a waiver by failing to

raise it, the waiver doctrine is “designed for our own protection as much as that of an opposing party, and therefore need

not be asserted by a party for us to invoke it.” United States v.

Hassebrock, 663 F.3d 906, 914 (7th Cir. 2011). This case presents

such a circumstance—one where, even if the defendants are

deemed to have not asserted waiver, the court should. James

litigated this case for years before the district court and never

developed a breach of fiduciary duty argument premised on

the two telephone calls to Concert. Consequently, neither

James nor Concert developed the record concerning those

telephone calls. And not only did the parties not develop the

record concerning those telephone calls, they did not identify

for the court the relevant portions of the record related to those

telephone calls. This appeal involves a record of over 4,000

pages and the only way this court can properly and fairly

address a breach of fiduciary duty claim premised on those

two telephone calls is for the court—without the aid of the

parties—to tediously sift through the record to understand

 Contrary to the court’s assertion that the panel had originally found no

10

waiver, Opinion at 11 n.22., Killian I bypassed the issue of waiver because

Killian lost on the merits of his claims. See Killian I, 680 F.3d at 757–58

(stating “we will bypass the waiver issue altogether and will address both

of James’s arguments only on the merits”).
78 No. 11-1112

exactly what happened (or rather, what inferences the record

could reasonably support). That review, as discussed at length

below, leads me to conclude that even absent waiver, James

cannot prevail on a breach of fiduciary duty claim premised on

the two telephone calls. But this court should not undertake

such a review in the first instance and should hold James to his

waiver. 

C. James cannot prevail on a breach of fiduciary duty

claim premised on the two April 7, 2006, telephone calls

to Concert because James made both calls for precertification of Susan’s hospital admission and not to

inquire on the network status of the Rush providers.

And the enrollment packet Susan received clearly

informed insureds of the reimbursement rates for outof-network providers and how to inquire on a provider’s network status. Further, nothing James said to

the Concert representatives put them on notice that he

was concerned about the Rush providers’ network

status. Accordingly, Concert did not have a fiduciary

duty to inform James that the Rush providers were outof-network. 

Even if Susan’s breach of fiduciary duty claim were not

moot, the claim fails on the merits. “A claim for breach of

fiduciary duty under ERISA requires the plaintiff to prove: (1)

that the defendant is a plan fiduciary; (2) that the defendant

breached its fiduciary duty; and (3) that the breach resulted in

harm to the plaintiff.” Kenseth v. Dean Health Plan, Inc., 610 F.3d

452, 464 (7th Cir. 2010). The en banc court holds that a reason-
No. 11-1112 79

able finder of fact could find that the defendants breached 11

their fiduciary duty to Susan by not informing James that the

Rush providers were out-of-network and that this breach of

duty harmed James. Opinion at 36–37. Forthe reasons detailed

below, I disagree. 

1. James did not call the PHCS dedicated provider

participation telephone number on April 7, 2006.

Rather James called Concert twice at the same

number, which was listed three times on Susan’s

insurance identification card, twice for utilization

review and once for customer service. 

The en banc court notes that to review Susan’s breach of

fiduciary duty claim the court must focus on the two April 7,

2006 telephone calls, Opinion at 28, so I begin there as well.

In discussing the first telephone call James made on April

7, 2006, the en banc court states that James called the “provider

participation” number listed on the front of Susan’s insurance

card. Opinion at 6. The panel decision also assumed that to be 12

Because § 502(a)(3) authorizes only “equitable relief” there is no right to 11

a jury trial. McDougall v. Pioneer Ranch Ltd. Partnership, 494 F.3d 571, 576 (7th

Cir. 2007); Nat’l Sec. Sys., Inc. v. Iola, 700 F.3d 65, 79 n.10 (3d Cir. 2012); Cox

v. Keystone Carbon Co., 861 F.2d 390, 393 (3d Cir. 1988). 

The en banc court also states that “[T]he Killians did not contact Concert 12

before meeting with Dr. Bonomi because their plan to see Dr. Bonomi for a

second opinion did not depend on whether he was in Mrs. Killian’s

network.” Opinion at 6 (emphasis added). James, though, did not testify

why he had not contacted Concert before Susan’s appointment, and, in fact,

stated that he did not know whether or not Susan had contacted Concert or

(continued...)
80 No. 11-1112

the case, while noting that no matter which number James

called, there was no breach of fiduciary duty. Killian I, 680 F.3d

at 759. But, as discussed below, by inferring that James called

the PHCS dedicated provider number, both the panel decision

and the en banc decision reflect a misunderstanding of the

record, which is understandable given that James waived the

argument and the parties never briefed the issue or provided

record support for their differing views on which telephone

number James called. 

Contrary to the panel decision and the en banc court’s

conclusion today, the record does not support a reasonable

inference that James called the PHCS dedicated provider

participation number. In fact, in his Rule 56.1 Statement of

Facts, James never claimed he called the PHCS dedicated

provider line, but merely stated he “called one of the 800

numbers on the card” and that he “called another number on

Susan’s insurance card.” R.266 at 2. Nor did James claim in his

affidavit that he first called the dedicated provider line, stating

instead: “I called one of the 800 numbers on the card.” R.266-2

at 2. Then, in his deposition testimony, James first testified:

“[t]here were two numbers on the medical card. I believe one

was for—I believe one of them was for determination of

eligibility of benefits and one was for admittance or a customer

service number. So I believe I called the customer service

number first and later on I called back ... .” R.115-3 at 71-72. As

the deposition continued, though, when asked again about the

 (...continued) 12

reviewed the network provider list on the Concert website priorto meeting

with Drs. Barnes and Bonomi. R.115-3 at 30–31, 121.
No. 11-1112 81

telephone calls, and specifically which number he called first

on April 7, James stated “I believe it was the top number,” the

[800-242]-6679 number . R.115-3 at 117–18. (The number at the 13

very top of the card is the PHCS dedicated provider participation number.) And that when he called the second time he

“believe[d] it was the second number,” the customer service

number, 866-818-3106. R.115-3 at 118. 

James’s deposition testimony was thus contradictory

concerning which number he initially called on April 7. This

contradiction is not fatal to James’s case, given that this is

summary judgment and the record must be viewed in the light

most favorable to the non-moving party. But it does show that

James is unclear about what number he actually called on

April 7, which is most likely why he did not assert in his Rule

56.1 Statement of Facts that he called the PHCS dedicated

provider line. R. 266 at 2. 

While James’s uncertainty might not doom his case, his

testimony about the telephone calls makes clear that it was

impossible for him to have first called the PHCS dedicated

provider-line number. Specifically, in explaining in his

deposition what transpired on April 7, James stated that when

he called back the second time, “I talked to a woman named

Maria and I said something about, ‘I’m trying to get confirmation that we are going to be—my wife is going to be admitted

to Rush.’ Again, I said—she just said, like she knew who I was,

she said, ‘Oh, you mean St. Luke’s,’ and she laughed and she

The deposition transcript reads “824-6679,” R.115-3 at 118, which is

13

presumably a typographical error because the card lists the number for

PHCS as 242-6679. 
82 No. 11-1112

sounded like she was talking to the person next to her. That

there were two different phone numbers but they were sitting

next to each other. I believe they were 800 numbers. She said,

‘You mean Rush Presbyterian.’” R.115-3 at 72. James reiterated

this point in his affidavit, stating when he called back the

second time, “[w]hen Maria heard me say ‘St. Luke’s’ she

laughed and said to a colleague, ‘It’s the guy from St. Luke’s.’”

R.87 at 2.

It is impossible for this scenario to have transpired as James

recounted if he had called the PHCS dedicated provider line

because, as the record establishes, Concert does not run the

dedicated provider line. The PHCS network does. R.115-3 at

200. The only way for the second operator to quip to the coworker sitting next to her that it was the guy from “St. Luke’s”

would be if James had called the Concert number both times,

and in the interim, the two Concert representatives were

discussing James’s first call. And the number for Concert was

listed on Susan’s insurance identification card three times,

twice on the front of the card, once for customer service and

once for utilization review, and once on the back of the card for

utilization review. Thus, given James’s own testimony, it was

impossible for James to have first called the PHCS line dedicated to determining provider participation status. He must

have instead called Concert both times.

Admittedly, the record is not well developed on this point

and for a very simple reason: James never claimed that he

called to determine Rush’snetwork status and instead testified

expressly and clearly in his deposition that he called to inform
No. 11-1112 83

Concert that Susan was being admitted to the hospital . See 14

infra at 87–92. And James never developed a breach of fiduciary duty claim before the district court premised on these

telephone calls; his mention of them in his appellate briefs was

also fleeting. Accordingly, there was no reason for Concert to

develop an argument about these telephone calls, to conduct

further discovery concerning the telephone calls, orto point the

court to the portions of the record related to these telephone

calls and the management of the dedicated provider line by

PHCS. Thus, James’s waiver prejudiced Concert because it

could have sought additional discovery, which might more

clearly negate James’s current argument that he called the

PHCS dedicated provider line to determine Rush’s network

status.15

 The court states that while James used the word “preadmission” in his 14

deposition when telling the attorneys the purpose of his call, he did not

testify that he told the representatives that he was calling for

preadmission.” Opinion at 36 n.45. The court then states that the interaction

with the representatives included “informing the representative of his

location and telling the representative of the needed surgery.” Opinion at

36 n.45. It is true that James never testified that he used the technical term

“preadmission” when talking to the representatives. But he did testify that

he told them: “Susan is going to be admitted”; “I’m trying to get confirmation that we are going to be—my wife is going to be admitted to Rush”;

“she is going—they want to admit her because we already determined the

tumor had to come off”; “I said she was being admitted to the hospital and

they were going to do the surgery ... Brain surgery.” R.115-3 at 71–72, 124.

For instance, during James’s deposition, the defendant’s attorney asked 15

where he made the two telephone calls from, ascertained they were made

from a cell phone, that James still uses that cell phone, and confirmed the

(continued...)
84 No. 11-1112

In fact, this entire discussion aptly illustrates why the

waiver doctrine is also designed for the court’s own protection.

Throughout the panel and en banc decisions, the opinions

contradictorily state that James’s first call on April 7 was to

Concert and to the dedicated provider line. See Killian I, 680

F.3d at 752, 757, 759–60; Opinion at 6, 29, 34–35. But if the first

call was made to the PHCS dedicated provider line, then the

first call could not have been made to Concert because, as the

record does establish, the PHCS network operates the 800

number that individuals can call to determine if a provider is

in the caller’s network . R.115-3 at 200. 16

The en banc court sidesteps the issue by stating that Concert

has never disputed the fact that James’s first call was to the

dedicated provider line and the second call was to the Concert

 (...continued) 15

carrier. R.115-3 at 152–53. The defendants could have subpoenaed the

telephone records to confirm the telephone number James called on April

7, 2006, but never did. But they had no reason to do so because James never

claimed that he called to determine network status or that the telephone

calls served to establish a separate breach of fiduciary duty claim. The

defendants could also have attempted to obtain an affidavit from the

representatives who fielded James’s calls to further establish that they came

into the same call center.

Concert cannot be held liable for a breach of fiduciary duty based on the 16

actions of a non-fiduciary like PHCS. See Kenseth, 610 F.3dat 465 (explaining

that “[f]inding that plan administrators may breach a fiduciary duty

vicariously through the actions of a non-fiduciary would vitiate our

requirement that an ERISA claim for breach of a fiduciary duty must be

asserted against plan fiduciaries”) (internal quotation omitted).
No. 11-1112 85

customer service line. Opinion at 7 n.17. But Concert did.

During oral argument, Concert’s counsel stated that James did

not call the dedicated provider line number. The en banc court

challenged the attorney on this point several times, and after

realizing the en banc court’s confusion, Concert’s attorney

explained why, given James’s testimony, it was impossible for

James to have called the dedicated provider-line number:

Concert and PHCS Network are two distinct entities, each with

separate 800 numbers, separate physical locations, and

different employees. Because this was never an issue before,

Concert never raised it before. And because in his Rule 56.1

Statement of Facts James never asserted that he had called the

dedicated provider line, there was nothing to dispute. R.266 at

2. 

Our review of summary judgment orders requires us to

view all reasonable inferences in the light most favorable to the

non-moving party. But “if the factual context renders the

claims asserted by the party opposing summary judgment

implausible, the party must ‘come forward with more persuasive evidence to support their claim than would otherwise be

necessary.’” McDonnell v. Cournia, 990 F.2d 963, 967 (7th Cir.

1993) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986)). The factual context laid out

above renders James’s recollection of first calling the dedicated

provider line impossible. Rather, given his testimony, James

must have called the same Concert customer service/utilization

number twice on April 7.17

The court responds that the record does not establish whether Concert

17

(continued...)
86 No. 11-1112

The court incorrectly assumes that James first called the

PHCS dedicated provider line. And that assumption is the

lynchpin to the en banc court’s conclusion that a reasonable

finder of fact could find the defendants had a fiduciary duty to

inform James that theRush providers were out-of-network. See

Opinion at 28 (“Because this line was dedicated to informing

beneficiaries whether providers were in network, Concert

knew (or at the very least, should have known) that beneficiaries would call this line to determine a provider’s network

status.”); Opinion at 33 (“Given his earlier telephone conversation, a reasonable trier of fact certainly could conclude that any

further information as to whether the providers were in Mrs.

Killian’s network would have been provided in the course of

this conversation regarding the authorization of the particular

procedure.”); Opinion at 34 (“It would be reasonable to infer

that this [second] representative knew that Mr. Killian had

attempted to determine whether ‘St. Luke’s’ was in Mrs.

Killian’s network during Mr. Killian’s prior call to the number

for determining provider participation.”); Opinion at 35

(“[T]he secondrepresentative’s comments suggest that she was

aware of the earlier call to the network provider number.”).

But because the record does not support a reasonable inference

that James called the dedicated provider line, that cannot serve

as a basis for inferring that James was calling to determine the

network status of the providers. And as discussed below,

 (...continued) 17

shared facilities or employees with PHCS and therefore we cannot assume

that they did not. Opinion at 35 n.45. But it is not reasonable to infer that

two separate legal entities share facilities or employees, absent some

evidence that they do. And there is none in this case. 
No. 11-1112 87

James did not call Concert on April 7 to determine the Rush

providers’ network status, but, as he testified, he called

because Susan was being admitted to the hospital and “you

had to call for preadmission.” R.115-3 at 72–73.

2. James called Concert twice on April 7, 2006, to

inform Concertthat Susan was being admitted to the

hospital, as required by the insurance policy’s precertification provisions. James did not call to inquire

about the network status of the Rush providers and

nothing James said would put the Concerttelephone

representatives on notice that James was concerned

about the providers’ network status.

The en banc court concludes that a reasonable trier of fact

could conclude that James called Concert to determined

whether the Rush providers were in Susan’s network, Opinion

at 30, and that “Concert was aware (or, at the very least, that it

should have been aware) that Mr. Killian was attempting to

determine whether Rush and the physicians who were about

to perform surgery on Mrs. Killian were within Mrs. Killian’s

network.” Opinion at 28. I disagree.

First, the record does not support the conclusion that James

called Concert to determine whether the Rush providers were

in Susan’s network. In fact, in his deposition James himself

negates any such inference—twice. After summarizing the first

telephone call, James stated: “So that was my reason of the

phone call to tell them she was going to be admitted to the

hospital. And we never determined anything. She said—I
88 No. 11-1112

believe she said, ‘Give me a call back.’” R.115-3 at 71. Second, 18

after discussing both telephone calls, the defendants’ attorney

asked James: “What was it that prompted you to call on April

7th?” James responded: “What prompted me to call? The fact

that she was going to be admitted to a hospital and the fact that

you had to call for preadmission.” R.115-3 at 72–73. When 19

While acknowledging that James testified that he and the Concert

18

representatives “never determined anything” during the firsttelephone call,

the en banc court then states that James “also testified that, at the end of the

two calls, he believed that Mrs. Killian’s surgery would be covered

‘[b]ecause nobodyever said these [providers] are out-of-network.’” Opinion

at 30. However, contrary to the court’s statement, James never testified that

“at the end of the two calls, he believed that Mrs. Killian’s surgery would

be covered.” Opinion at 30. Rather, during James’s deposition, James was

asked why he believed, as attested to in his affidavit, “that Susan’s medical

bills would be covered by Concert Health Plan and [why he] had no reason

to believe they would not be covered.” R.115-3 at 135. To that question,

James responded: “Because nobody ever said these are out-of-network.

They are out-of-pocket expenses that you are going to have to incur. You

see enough people, you think somebody would have said something.” Id.

The exchange continued: “Q: At no time did any of the treating physicians

or hospitals tell you that they were out-of-network? A: No.” Id.

The court states that “Mr. Killian testified that, in making the second 19

telephone call, he was calling ‘for preadmission,’ as he was instructed to do

by Mrs. Killian’s insurance card. ... Taking these facts in the light most

favorable to Mr. Killian, a reasonable trier of fact could conclude that Mr.

Killian made the second call to obtain the required ‘certification,’ or

‘UTILIZATION REVIEW,’ for his wife’s surgery.” Opinion at 31 (emphasis

added). The record indicates otherwise. As just quoted, after discussing both

telephone calls, James was asked “[w]hat was it that prompted you to call

on April 7th?” R.115-3 at 72–73. James responded “[t]he fact that she was

going to be admitted to a hospital and the fact that you had to call for

(continued...)
No. 11-1112 89

asked who told him you had to call for preadmission, James

stated “I believe I read it on the card.” R.115-3 at 73. 20

Significantly, James never stated in his deposition, or in the

affidavit that he filed in this case, that he called Concert on

April 7 to determine whether the Rush providers were innetwork. Had that been the purpose, or even a purpose of the

call, James’s attorney could (and would) have asked James

whether he had called on April 7 to also determine the Rush

providers’ network status. But his attorney did not, even

though in his complaint James specifically alleged that he

“called Concert Health Plan Insurance Company to confirm

that Rush University was a network provider under the

Concert Health Plan (or Royal Management Corp. Health

Insurance Plan).” R.119-2 at 10. Thus, even though James

alleged in his complaint that he called to confirm the Rush

 (...continued) 19

preadmission.” Id. Moreover, as noted above, in discussing the first

telephone call, James stated “[s]o that was my reason of the phone call to

tell them she was going to be admitted to the hospital.” R.115-3 at 71.

According to James’s own testimony, he made both calls for the same

purpose—because Susan was being admitted to the hospital and you

needed to call for preadmission.

The documents provided to Susan also clearly laid out the importance 20

of informing Concert of hospitalizations. James, who was not covered by

the insurance and had not reviewed any of the enrollment information

Susan received, knew this from the insurance card and also because he and

Susan had just gone through the same process when Susan had been

admitted to Delnor hospital. R.115-3 at 263–64.
90 No. 11-1112

providers’ network status, when it came time to come forward

with proof to support that allegation, James remained silent . 

21

“The purpose of summary judgment is to ‘pierce the

pleadings and to assess the proof in order to see whether there

is a genuine need for trial.’” Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). James presented no

evidence that he called Concert on April 7, 2006, to determine

the network status of the Rush providers and he easily could

have made such a statement in his affidavit or deposition

testimony. Because “[a] non-moving party cannot simply rest

on its allegation without any significant probative evidence

tending to support the complaint,” id. at 249, the court is

wrong to infer that James called to determine the Rush providers’ network status when he had the opportunity to say he did

so for that reason, but did not; and in fact stated a different

purpose when asked, under oath, for the purpose of the call.

Second, even if James subjectively intended to determine

the network status of the Rush providers when he called

Concert on April 7, the Concert representatives had no reason

to know that that was a purpose of James’s April 7 telephone

calls. In discussing the April 7 exchanges, James explained that

he told the representatives that “Susan is going to be admitIn his deposition, James also testified that prior to her admission at 21

Delnor, Susan had a CAT scan at a facility in St. Charles and that he never

called Concert to determine if the facility was in network; he did not know

whether Susan had called. R.115-3 at 120. He also did not know whether

Susan had called to determine Delnor’s network status. R.115-3 at 40. In

fact, it appears that some of the doctors at Delnor were not in Susan’s

network. R.115-3 at 114.
No. 11-1112 91

ted”; “I’m trying to get confirmation that we are going to

be—my wife is going to be admitted to Rush”; “she is

going—they want to admit her because we already determined

the tumor had to come off”; “I said she was being admitted to

the hospital and they were going to do the surgery. ... Brain

surgery.” R.115-3 at 71-72, 124. Nothing James said during

these conversations put the Concert representatives on notice

that a purpose of his call was to learn the network status of the

Rush providers. Rather, a reasonable representative would

believe that James telephoned Concert because Concert

required insureds to notify it of hospital admissions—since

that was what James told the telephone representatives. As

James said, in his own words: “I said she was being admitted

to the hospital and they were going to do the surgery. ... Brain

surgery.” Under these circumstances, it is not reasonable to

expect the representative to have “instructed Mr. Killian that

she was unable to locate an entry in her system for ‘St. Luke’s’

and that she could make no representations at that time as to

whether the provider was in-network.” Opinion at 31.22

The court’s reasoning that “[t]he first Concert representative’s attempt 22

to locate ‘St. Luke’s’ suggests that she was aware of his need to determine

Rush’s network status,” Opinion at 35, is also misplaced. To document an

insured’s hospital admission, Concert would need to record the name ofthe

hospital and Concert’s attempted to locate “St. Luke’s” therefore does not

suggest that the representative was aware of James’s need to determine the

network status. The court also reasons that Concert “should have known

that beneficiaries such as Mr. Killian would be calling this line [the

customer service/utilization review number] to determine whether certain

providers were in their network.” Opinion at 32. But that same number was

given for utilization review and customer service. Opinion at 32. Thus,

(continued...)
92 No. 11-1112

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

Cir. 2010), is not analogous to the Killians’ situation.

In Kenseth, the insured specifically asked whether an

upcoming surgery would be covered under her

insurance policy and was told by a representative of

the insurance company that it would be, but the

insurance company later denied coverage. The

Certificate of Insurance in that case was ambiguous

on whether there was coverage and failed to identify

a means by which a participant could obtain an

authoritative determination on a coverage question.

The Certificate also invited participants to call

customer service with coverage questions but did

not warn them that they could not rely on any

advice they received. Kenseth I, 610 F.3d at 469–78.

Here James did not ask the Concert representatives

any questions, but merely informed them that Susan

was being admitted to the hospital. And Susan’s

Certificate of Insurance was clear on the different

levels of reimbursement for in-network and out-ofnetwork providers and on how to determine the

network status of a provider.

In holding that a reasonable finder of fact could conclude

that the defendants breached their fiduciary duty to Susan by

 (...continued) 22

Concert representatives could expect to be told of hospital admissions or

asked question on any topic regarding the health insurance plan, and there

is no reason they would automatically infer that a caller to that number was

seeking to determine the network status of a provider.
No. 11-1112 93

not informing James during the April 7, 2006 telephone calls

that the Rush providers were out-of-network, the court relies

extensively on Kenseth v. Dean Health Plan, Inc., 610 F.3d 452

(7th Cir. 2010). But in doing so, the court separates the language of Kenseth from the facts in that case.

In Kenseth, the plaintiff had undergone a vertical banded

gastroplasty (“VBG”), often colloquially referred to as a

“stomach-stapling,” in 1987. Id. at 457. Years later, as a complication of the VBG, Kenseth began to suffer from gastric

stenosis, which in turn caused her “to experience a variety of

aliments,” including severe acid reflux, erosion of the esophagus, pneumonia, and severe hair loss. Id. To address these

problems, Kenseth underwent an endoscopicprocedure which

initially resolved the problem. Id. at 458. But after it recurred,

Kenseth saw a bariatric surgeon, Dr. Huepenbecker, who

recommended that Kenseth “undergo a Roux-en-Y gastric

bypass procedure as a longer-term solution to the complications.” Id.

Priorto the surgery, Kenseth contactedher healthinsurance

company, Dean Health Plan, to determine whether the surgery

would be covered by insurance. Id. at 459. The Certificate of

Insurance encourages participants to do so, stating: “If you are

unsure if a service will be covered, please call the Customer

Service Department ... prior to having the service performed.”

Id. at 458. Kenseth spoke with a customer service representative, Maureen Detmer, and “averred that she told Detmer she

would be having ‘a reconstruction of a Roux-en-Y stenosis,

[sic]’ and when Detmer asked her to explain the nature of the

surgery, Kenseth told her ‘it had to deal with the bottom of the

esophagus because of all the acid reflux I was having.’” Id. at
94 No. 11-1112

459-60. After checking with her supervisor, Detmer advised

Kenseth that the procedure would be covered by her insurance, subject to a $300 copayment. Id. at 460. Based on these

assurances, Kenseth underwent the surgery on December 6,

2005. Id.

The day after the surgery, Dean (which under its policy was

not bound by oral representations concerning coverage)denied

coverage for Kenseth’s surgery and all associated services

based on two provisions in Kenseth’s health insurance policy.

First, the policy listed non-covered services as “[a]ny surgical

treatment or hospitalization for the treatment of morbid

obesity.” And in the “General Exclusions and Limitations”

provisions was an exclusion for “[s]ervices and/or supplies

related to a non-covered benefit or service, denied referral or

prior authorization, or denied admission.” Id. at 457. Because

complications fromKenseth’s earlier VBG surgery necessitated

Kenseth’s Roux-en-Y surgery, Dean concluded that the 2005

surgery was not covered; it similarly concluded that there was

no coverage for a second hospital stay necessitated by complications of the 2005 surgery. Kenseth was left with approximately $78,000.00 in medical bills. 

Kenseth sued, alleging claims under state law and under

ERISA for breach of fiduciary duty and equitable estoppel. The

district court granted Dean summary judgment and on appeal

this court reversed on the breach of fiduciary duty claim,

stating: 

As we detail below, the facts would permit the

factfinder to conclude that Dean breached the

obligation of loyalty it owed to Kenseth by
No. 11-1112 95

providing her with plan documentation that was

unclear as to coverage for her surgery, by inviting her and other participants to call its customer

service representatives with questions about

coverage but omitting to warn callers that they

cannot rely on the answers they are given, and

by failing to inform participants how they might

obtain answers from Dean that they could rely

upon.

Id. at 464.

As this summary of Kenseth makes clear, the Killians’

situation now before us is nothing like Kenseth. In Kenseth, the

insured called and asked whether there would be coverage for

a specific surgical procedure. Here James called and informed

Concert that Susan was being admitted to the hospital and

made no inquiry about the Rush providers’ network status or

the reimbursement rates for the medical services. In Kenseth,

the insurance agent, after checking with her supervisor,

erroneously stated that the procedure the plaintiff asked about

would be covered. But after the operation, the insurance

company denied coverage. Here the insurance company did

not make any representations to James concerning whether the

Rushproviderswere in-network or out-of-network and did not

deny coverage for Susan’s brain surgery. In Kenseth, the

certificate was ambiguous concerning whether the Roux-en-Y

surgery was a covered procedure. With Susan, the certificate

of insurance was clear concerning: (1) the reimbursement rates

paid to in-network and out-of-network providers; (2) an

insured’s responsibility for any expenses above the maximum

allowable fee for out-of-network providers; (3) the need to
96 No. 11-1112

inquire on the network status of the providers either via

telephone or on-line; (4) an insured’s right to choose any

provider they wished; and (5) an insured’s obligation to notify

Concert of any hospital admissions for pre-certification that the

procedure was medically necessary. In Kenseth, this court held

that the insurance company had a duty to disclose to callers

that they could not rely on representations made by agents of

the insurance company that a medical procedure was covered.

That duty to disclose was directly related to the question

Kenseth asked and which the insurance company answered,

namely whether surgery to perform a Roux-en-Y was covered

by the insurance policy. See Kenseth, 610 F.3d at 472 (the

fiduciary exposes itself to liability for the mistakes that plan

representatives might make in answering questions on that

subject) (emphasis added). Here, the information that the

Concert representatives provided James (i.e., that he could go

ahead with whatever had to be done and that a hospital 23

admission for brain surgery was “okay”) concerned precertification and whether the procedure was medically

necessary . James’s statement that Susan was being admitted

24

In discussing the “go ahead” given James, the court states that James was

23

not warned “that the ‘go ahead’ was not to be understood as an authorization.” Opinion at 30. But the “go ahead” was an authorization of the only

thing which needed to be authorized—a hospital admission. Concert did

not need to authorize treatment by out-of-network providers, as “the choice

of provider is [the insured’s.]” R.77-3 at 5, 11–12.

The Certificate of Insurance explained what Concert would do upon

24

receiving notice of a hospital admission, stating it would advise the insured

“if PreserviceReview and Precertification ofthe treatment plan is required”

(continued...)
No. 11-1112 97

for brain surgery and Concert’s “okaying” of that procedure as

medically necessary, were unrelated to the question of the

network status of the providers . And finally in Kenseth, the 25

insured was not told how to definitely determine whether

there was coverage.Here,insureds were told how to determine

if a provider was in-network or out-of-network, including by

calling Concert or the PHCS provider line or going on-line.

Kenseth is therefore distinguishable.

Notwithstanding these stark differences between Kenseth

and the facts of this case, the en banc court relies on several

passages in Kenseth which summarize general breach of

fiduciary duty principles to support its holding. But even those

passages from Kenseth do not support a breach of fiduciary

duty claim here. For instances, the en banc court relies several

times on passages from Kenseth discussing the fiduciary duty

owed to insureds when the insured “request[s] information”

or poses “questions” to the fiduciary. See, e.g., Opinion at

25–34.

But in this case, James did not request any information or

pose any questions. Rather, during both telephone calls, James

stated a fact—that Susan was being admitted for brain

 (...continued) 24

by Concert. R.77-3 at 34. A “go ahead with whatever needs to be done” and

an “okay,” confirmed the admission and that Concert did not require any

additional review to certify the hospital admission. R.115-3 at 239.

Asnoted above, the Certificate explained that precertification review was

25

a determination of whether a medical service was medically necessary and

that “[p]recertification of medical necessity is subject to the limitations,

exclusions, and provisions of this certificate ... .” R.77-3 at 23. 
98 No. 11-1112

surgery . And Susan was required by her policy to call 26

Concert and inform them of any hospital admissions, at which

point Concert would inform the insured if something further

was required (i.e., “if Preservice Review and Precertification of

the treatment plan is required” by Concert). R.77-3 at 34. So we

do not have a case where the mere making of the telephone call

implies a question. 

Likewise, “the only status and situation,” Opinion at 25, 34

(quoting Kenseth, 610 F.3d at 466), “circumstance,” Opinion at

25, 29 (quoting Kenseth, 610 F.3d at 466), or “predicament,”

Opinion 26 (quoting Kenseth, 610 F.3d at 467), of which Concert

knew was that Susan had already seen her doctor and was

being admitted for brain surgery. Nothing James said in either

telephone conversation put Concert on notice that the “situation,” “circumstance,” or “predicament” was that James was

inquiring about the network status of the Rush providers.

Accordingly, those passages from Kenseth provide no support

for the en banc court’s decision. 

The court again quotes Kenseth when reasoning that James

“should not be penalized because he failed to comprehend the

technical difference between ‘[go ahead]’ and ‘the provider is

Brain surgery is obviously medically necessary and it therefore makes

26

sense that the first Concert representative told James to “go ahead with

whatever had to be done,” but to call back when he knew the correct name

of the hospital. R.259-5 at 124–25. Similarly, once James called back and the

Concert representatives had determine the correct name of the hospital

(Rush), there was nothing to do but “okay” the hospital admission. And

Johny Antony, the Vice President of Operations for Concert, confirmed in

his deposition that approval was given for the brain surgery “based on the

treatment that was being sought.” R.115-3 at 239.
No. 11-1112 99

in-network].’” Opinion at 30 (quoting Kenseth, 610 F.3d at

467) . This case, though, does not involve a “technical differ- 27

ence,” but rather two very fundamental and distinct concepts

easily understood by the average layperson: (1) An insured

must notify the insurance company of a hospital admission for

pre-certification that the procedure is medically necessary; and

(2) the reimbursement rate for medical providers will depend

on the network status of those providers. The enrollment

documents provided to Susan explained both of these points

clearly and in simple, understandable terms. In short, there is

no technical question involved.

 This quote actually originates in Eddy v. Colonial Life Ins. Co. of Am., 919 27

F.2d 747 (D.C. Cir. 1990), and is then excerpted in Kenseth. Kenseth, 410 F.3d

at 467. In Eddy, the plaintiff learned that his employer was cancelling its

group health insurance coverage just days before he was to undergo

exploratory surgery. The plaintiff called his health insurance company,

explained the situation, and asked whether he could “continue” his group,

employment-based coverage. The insurer told Eddy he could not, but never

mentioned the option of converting to individual coverage. Given the facts

in Eddy, the court held it was a breach of fiduciary duty for the insurer not

to disclose to Eddy that he could convert his policy, stating: “Regardless of

the precision of his questions, once a beneficiary makes known his

predicament, the fiduciary is under a duty to communicate ... all material

facts in connection with the transaction which the trustee knows or should

know. Eddy should not be penalized because he failed to comprehend the

technical difference between ‘conversion’ and ‘continuation.’ The same

ignorance that precipitates the need for answers often limits the ability to

ask precisely the right questions.” Id. at 751. 
100 No. 11-1112

Finally, the Certificate of Insurance and the enrollment

packet Susan received were not “silent or ambiguous” on the 28

relevant issues. See Opinion at 26, 38 (quoting Kenseth, 610 F.3d

at 472). Rather, these documents were absolutely clear on the

differing levels of reimbursement for in-network and out-ofnetwork providers and that insureds were responsible for

charges above the maximum allowable fee. The documents

were also clear on how an insured could determine network

status, providing both directions to call the PHCS network

number or to find the information on-line. Further, the 29

documents clearly explained the importance of notifying

Concert of any hospital admissions for pre-certification of

medical necessity. Because the enrollment packet Susan

received clearly explained all of the relevant provisions, the

defendants did not have a fiduciary duty to remind James of

the basic terms of Susan’s health insurance coverage, such as

that payment reimbursement rates depend, in part, on the

The court is correct that the documents the defendants provided did not 28

comply with the technical requirements of ERISA. Opinion at 13. But the

enrollment packet Susan received upon enrolling in the Concert health

insurance plan clearly explained all of the relevant provisions in simple,

straightforward terms. And even with this knowledge, Susan chose the less

expensive, and more limited, insurance plan.

James testified that after Susan began receiving bills from Rush, he 29

attempted to determine the network status of the Rush providers on-line

but was unable to determine whether they were in-network or not. James,

however, also testified that he was “not very computer literate,” R.115-3 at

131, and the record included simple step-by-step instructions with screen

shots showing the simplicity of determining provider network status online, confirming James’s self-assessment. R.259-5 at 10–12. 
No. 11-1112 101

providers’ status as in-network or out-of network. See, e.g.,

Griggs v. E.I. DuPont de Nemours & Co., 237 F.3d 371, 381 (4th

Cir. 2001) (“ERISA does not impose a general duty requiring

ERISA fiduciaries to ascertain on an individual basis whether

each beneficiary understands the collateral consequences of his

or her particular election.”); Maxa v. John Alden LifeIns. Co., 972

F.2d 980, 985–86 (8th Cir. 1992) (finding no fiduciary duty

“individually to notify participants and/or beneficiaries of the

specific impact of the general terms of the plan upon them”);

Harte v. Bethlehem Steel Corp., 214 F.3d 446, 454 (3d Cir. 2000)

(stating it is “uncontroversial ... that a fiduciary does not have

to regularly inform beneficiaries every time a plan term affects

them”)30

D. Susan’s denial of benefits claim is moot because she

never paid the Rush providers and her estate has since

been closed, so there is no longer any harm to Susan or

her estate. If her claim were not moot, remand is most

expeditious.

Because the defendants did not have a fiduciary duty to inform James 30

that Rush was out-of-network, the breach of fiduciary duty claim cannot

succeed. But even if James could succeed on Susan’s estate’s breach of

fiduciary duty claim, whether monetary payments (which Cigna Corp. v.

Amara, 131 S. Ct. 1866, 1880 (2011), held could be an appropriate equitable

remedy), are appropriate in this case is questionable. See generally Kenseth

v. Dean Health Plan, Inc., 722 F.3d 869, 892 (7th Cir. 2013) (Manion, J.,

concurring). 
102 No. 11-1112

As explained above, Susan’s denial of benefits claim is

moot. However, if that claim were not moot, I remain comfortable with the panel’s decision, namely directing the parties to

submit a stipulation concerning the network status of the Rush

providers on remand. Opinion at 3 n.3, 10 n.20. At this point,

that solution seems the most expedient. However, should the

parties be unable to agree to a stipulation, the district court can

easily resolve the issue on remand on the basis of the current

record. Specifically, the district court can rely on the deposition

testimony of Johny Antony, the Vice President of Operations

for Concert, R.115-3 at 250, 270, and correspondence between

Concert and University Anesthesiologists, to confirm the

network status of the Rush providers. R.77-7 at 7, 11.

III. CONCLUSION

James suffered a tragic loss, and finding out that Susan’s

health insurance did not cover about $80,000 in medical

expenses only added to his grief. James deserves sympathy,

but in the final analysis, the mistake was the Killians’ and not

the defendants’. Once they received Susan’s dire and devastating diagnosis they did not consult with, or consider the terms

of, Susan’s health insurance plan. This is entirely understandable, but their mistake does not create liability for the defendants. And in creating such liability today, the court’s decision

has wide-spread ramifications. Health insurance is already

expensive. And the court’s holding will only further increase

the cost of health insurance because insurance companies, to

prevent being held liable for expenses not covered by their

policies, will require their representatives to review the policy

provisions with each caller. This is not a no-cost proposition:

It costs insurance companies money to staff telephones and the
No. 11-1112 103

more policy terms the representatives must cover, the more it

will cost. And the higher the administrative expenses, the

fewer dollars spent on health care—and the higher the premiums. Insureds then may not be able to afford the policy they

prefer and instead may opt for a less costly option with more

restrictions. That is what Susan did in this case: Susan selected

a less expensive health insurance plan that used the PHCSOpen Access Network, and that choice left Susan were fewer

options and higher out-of-pocket expenses. While it is understandable to feel sympathy for those facing significant medical

bills, we cannot bend the law to protect individuals from their

own choices and their own mistakes.31

Health insurance is also complicated. It must be in order to

address the multitude of potentialhealthcare scenarios. ERISA

requires a Summary Plan Description (“SPD”) for that very

reason—to provide lay people a straightforward explanation

of the terms of their health insurance coverage. And I agree

with the court that the defendants did not provide an SPD

which complied with ERISA and that statutory penalties are

appropriate for that failure. But the failure to provide an SPD

that complied with ERISA did not harm Susan because the

defendants provided Susan with an enrollment packet that

clearly explained all of the provisions relevant to Susan’s

situation. Specifically the enrollment packet explained the

reducedreimbursement rates paid to out-of-network providers

I also agree with Judge Easterbrook’s second suggestion that the 31

majority’s approach can make participants worse off, and I join that portion

of his dissent. Easterbrook, J., concurring in part, dissenting in part, at

51–53.
104 No. 11-1112

and how to determine if a provider was in the PHCS-Open

Access Network. Yet there is no evidence that Susan or James

inquired whether Rush was withinher network.Unfortunately

it was not, and as a result Susan was left with hefty medical

bills, although in the end neither Susan, James, nor her nowclosed (for purposes of creditors filing claims) estate paid these

bills. And there is no longer any legal liability on those unpaid

bills. In the final analysis that makes this case, for the most

part, moot. Remanding to hold the defendants liable for

statutory damages for their violations of ERISA is appropriate.

But no more. I CONCUR IN PART and DISSENT IN PART.