RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0398p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

DENNIS DOZIER,

Plaintiff-Appellant,

v.

SUN LIFE ASSURANCE COMPANY OF CANADA,

Defendant-Appellee.

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No. 05-6598

Appeal from the United States District Court

for the Eastern District of Kentucky at London.

No. 04-00291—Danny C. Reeves, District Judge.

Argued: September 21, 2006

Decided and Filed: October 27, 2006 

Before: MERRITT, SUTTON, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: E. Douglas Richards, E. DOUGLAS RICHARDS, PSC, Lexington, Kentucky, for

Appellant. Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC,

Covington, Kentucky, for Appellee. ON BRIEF: E. Douglas Richards, E. DOUGLAS RICHARDS,

PSC, Lexington, Kentucky, for Appellant. Jeffrey C. Mando, ADAMS, STEPNER,

WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellee.

_________________

OPINION _________________

SUTTON, Circuit Judge. Dennis Dozier challenges the district court’s dismissal of his

employee-benefits suit for failure to exhaust administrative remedies, claiming that pursuing the

administrative review process for one benefit after the insurance company had already rejected his

application for a similar (though easier to obtain) benefit would have been futile. Because it indeed

would have been futile for Dozier to ask the insurance company to find that he could not perform

“any occupation” for which he was qualified (the eligibility requirement for obtaining a waiver of

life insurance premiums) after the company had already concluded that he could perform his “own

occupation” (making him ineligible for long-term-disability benefits), we reverse. 

1
No. 05-6598 Dozier v. Sun Life Assurance Co. of Canada Page 2

I.

In March 2001, Dennis Dozier injured his lower back and managed to work only

intermittently after the injury. A year later, on March 19, 2002, his doctor recommended that he

retire because he was “permanently incapacitated” and could not work. JA 153.

Through his employer, Dozier participated in long-term-disability and life insurance policies

underwritten by Sun Life Assurance Company of Canada. The long-term-disability benefit applied

to anyone “unable to perform the Material and Substantial Duties of his Own Occupation.” JA 102

(emphasis added). The life insurance policy provided a waiver-of-premium benefit for disabled

employees, which the policy defined as those “unable to perform the material and substantial duties

of any occupation for which he is or becomes reasonably qualified for by education, training or

experience.” JA 81 (emphasis added).

Dozier applied for benefits under each policy through a single application form provided by

Sun Life. On May 15, 2002, Sun Life issued a letter to Dozier denying his claim for long-termdisability benefits. The letter, signed by Beth Bixler from the LTD Claims group, identified his

occupation as involving “sedentary” work and concluded that “you are not precluded from

performing that type of work.” JA 44. One week later, Sun Life issued a letter denying Dozier’s

claim for waiver-of-premium benefits. Signed by Kathy Barrick of the Life Claims group, the letter

stated that “[t]he long term disability claim file indicated . . . that the findings in your medical

records did not preclude you from performing sedentary work” and thus “[s]ince you are not Totally

Disabled . . . we must deny this request for benefits.” JA 41. The letter also noted that “this

decision is solely related to your Waiver of Premium claim and does not directly [a]ffect your long

term disability claim.” Id. Each letter explained the process for filing an appeal from the insurance

company’s decision. 

On July 2, 2002, Dozier sought administrative review of Sun Life’s long-term-disability

decision. According to the terms of the policy, Dozier had 180 days to decide whether to appeal

either the long-term-disability or the waiver-of-premium decisions, and Sun Life had 90 days to

issue a decision with respect to each potential appeal. On October 17, 2002, Sun Life notified

Dozier that it would adhere to its initial decision in denying his long-term-disability claim and that

“[a]ll administrative remedies ha[d] been exhausted and no additional information [would] be

reviewed.” JA 147. When Sun Life issued this letter, Dozier still had 32 days to seek administrative

review of the harder-to-obtain benefit—the waiver of premiums. 

Dozier filed a lawsuit in state court against Sun Life seeking long-term-disability and waiverof-premium benefits. After Sun Life removed the case to federal court on diversity grounds, the

district court ruled that Sun Life had mistakenly denied Dozier long-term-disability benefits and

dismissed without prejudice his waiver-of-premium claim for failure to exhaust administrative

remedies. 

In response, Dozier asked Sun Life to review the denial of his waiver-of-premium claim.

Sun Life declined, noting that Dozier was outside the 180-day window for appealing the decision.

Dozier filed a second action in state court regarding his waiver-of-premium claim, and Sun

Life again removed the action to federal court. The district court dismissed Dozier’s claim with

prejudice because he had failed to exhaust his administrative remedies and because the time for

seeking administrative review had expired. 

II.

Acknowledging that he did not exhaust the administrative remedies available on his waiverof-premium claim, Dozier argues that any administrative appeal would have been futile given the
No. 05-6598 Dozier v. Sun Life Assurance Co. of Canada Page 3

reality that Sun Life had denied his long-term-disability appeal and indeed had done so before the

time for appealing the other claim had expired. While “application of the administrative exhaustion

requirement in an ERISA case is committed to the sound discretion of the district court,” Fallick

v. Nationwide Mut. Ins. Co., 162 F.3d 410, 418 (6th Cir. 1998), that discretion must be exercised “to

excuse nonexhaustion where resorting to the plan’s administrative procedure would simply be

futile,” id. at 419; see id. at 420 (“[W]hen resort to the administrative review process would be an

exercise in futility, the exhaustion of remedies doctrine shall not apply.”). 

Generally speaking, we have applied the administrative-futility doctrine in two scenarios:

(1) when the “Plaintiffs’ suit [is] directed to the legality of [the plan], not to a mere interpretation

of it,” Costantino v. TRW, Inc., 13 F.3d 969, 975 (6th Cir. 1994) (emphases omitted); see also

Fallick, 162 F.3d at 420, and (2) when the defendant “lacks the authority to institute the [decision]

sought by Plaintiffs,” Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 719 (6th Cir. 2005).

To meet the “quite restricted” standard for establishing administrative futility, we have required a

litigant to “make a clear and positive indication” that further administrative review would have come

to naught. Fallick, 162 F.3d at 419. 

The “clear and positive indication” that Dozier had no reason to seek administrative review

of his waiver-of-premium claim, it seems to us, came when Sun Life denied his long-term-disability

claim on October 17, 2002. At that point, Dozier still had 32 days to seek administrative review of

the waiver-of-premium claim but no rational reason for doing so. In denying the long-termdisability claim, Sun Life had made a final determination that Dozier was able to perform “the

Material and Substantial Duties of his Own Occupation.” JA 145 (emphasis added). That

determination necessarily precluded him from arguing with a straight face to the same insurance

company that he was “unable to perform the material and substantial duties of any occupation,” JA

41 (emphasis added), the eligibility standard for obtaining the waiver-of-premium benefit. The

denial of the easier-to-obtain claim precluded eligibility for the more-difficult-to-prove claim.

Under these circumstances, Dozier had every reason to believe that administrative review

of the waiver-of-premium claim would have been pointless. Dozier could fairly assume that the

same company would apply these two tests consistently, meaning that the denial of the one claim

would foreclose eligibility for relief on the other. See Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 449 (2d Cir. 2006) (noting that “Hartford’s decision that Paese was not totally

disabled from his ‘own occupation’ necessarily implies a decision that he was not totally disabled

from ‘any occupation’”); Cilano v. Alstom Transp., Inc., No. 04-CV-6322 CJS, 2005 WL 139172,

at *2–3 (W.D.N.Y. Jan. 18, 2005) (“Where as here a plaintiff has exhausted one claim but not

another, he may demonstrate futility by showing that the two claims are so identical that the denial

of one demonstrates with certainty that the other will also be denied.”) (internal quotation marks

omitted); cf. Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir. 1996) (holding exhaustion

required despite futility argument because “[t]he two claims are not so identical that Mobil’s denial

of the claim for separation benefits demonstrates with certainty that it would deny the ERISA claim

as well”). 

Sun Life’s handling of the two claims buttresses this conclusion. Dozier initially filed only

an application for long-term-disability benefits. But because he also was potentially eligible for the

waiver-of-premium benefit, Sun Life treated Dozier’s single application as an application for both

benefits, as required by the insurance company’s policy. See JA 199 (“[I]f someone had LTD they

don’t need to file for Waiver and LTD, they only file for LTD.”). Then, when Sun Life denied

Dozier the waiver-of-premium benefit, it explained that Dozier was able to perform “any

occupation” for which he was qualified—the test for eligibility—because “[t]he long-term-disability

claim file indicated . . . that the findings in your medical records did not preclude you from

performing” your “own occupation.” JA 41. Quite understandably, in other words, the company
No. 05-6598 Dozier v. Sun Life Assurance Co. of Canada Page 4

explained to Dozier that his ability to perform his “own occupation” showed that he could perform

“any occupation.”

Further supporting Dozier’s decision to consider the company’s action on the former

application before appealing the latter one, Sun Life gave Dozier 180 days to seek administrative

review of the decisions. Given the interconnectedness of the two applications and the policy’s

requirement that appeals must be decided within 90 days, Dozier was fully entitled to seek review

of the easier-to-obtain benefit and wait to decide whether to seek review of the harder-to-obtain

benefit until after a response from the company. And when Sun Life denied the long-term-disability

benefit, the eligibility criteria for the two benefits made the appeal of the waiver-of-premium

decision look utterly pointless to anyone save a litigation-hungry employee. “The law does not

require parties to engage in meaningless acts or to needlessly squander resources as a prerequisite

to commencing litigation.” Fallick, 162 F.3d at 420 (internal quotation marks omitted). 

Nor would an appeal of the waiver-of-premium claim have advanced any of the purposes of

the judicially-created ERISA exhaustion requirement, namely:

(1) To help reduce the number of frivolous law-suits under ERISA.

(2) To promote the consistent treatment of claims for benefits.

(3) To provide a nonadversarial method of claims settlement.

(4) To minimize the costs of claims settlement for all concerned.

(5) To enhance the ability of trustees of benefit plans to expertly and efficiently

manage their funds by preventing premature judicial intervention in their decisionmaking processes.

(6) To enhance the ability of trustees of benefit plans to correct their errors.

(7) To enhance the ability of trustees of benefit plans to interpret plan provisions.

(8) To help assemble a factual record which will assist a court in reviewing

fiduciaries’ actions.

Constantino, 13 F.3d at 975. 

Sun Life has not explained how an administrative appeal of the waiver-of-premium benefit

would advance any of these purposes. Nor can we think of any reason why it would do so. By not

requiring exhaustion, in marked contrast, we would advance several of these goals: cost savings for

the company and applicant; elimination of frivolous claims; timeliness in bringing the dispute to a

close; and of course “the consistent treatment of claims for benefits.” Id. The last point may be the

most important: Courts and applicants may fairly assume that a company will treat benefits claims

consistently and coherently; they should not be required to insist on exhaustion on the assumption

that the company may have a bad day. Otherwise, the futility exception would never apply—as the

specter of a mistake or inconsistent application of the plan’s terms would always hold out the

possibility of relief. 

Sun Life persists that Dozier should have exhausted both claims because the company had

independent units reviewing each claim, making it possible for the company to grant the harder-toprove claim after denying the easier-to-prove claim. In support of this argument, Sun Life points

to the testimony of Lesley Hanslope, the life insurance group manager, who said that even though

her group considered the decision of the other group, the life insurance group theoretically could
No. 05-6598 Dozier v. Sun Life Assurance Co. of Canada Page 5

have granted the waiver-of-premium claim even after the LTD group had denied the long-termdisability claim. She acknowledged, however, that such a decision would be “very rare,” and neither

she nor any other company employee could point to a single instance where that inconsistency had

occurred. JA 198–99. The context of her testimony, moreover, shows that she was speaking of the

two groups’ initial decisions, not their authority to issue inconsistent decisions in the context of an

administrative appeal. As to that, the record is silent. No authority to our knowledge exists for the

proposition that the futility exception does not apply whenever it can be said—indeed it always can

be said—that the company might make a mistake or exercise its discretion inconsistently in

addressing two related applications. 

In the end, we are left with two policies whose consistent interpretation would have required

Sun Life to deny Dozier’s application for the waiver-of-premium benefit, two policies that so far as

the record shows have never been construed inconsistently and an individual applicant whose only

sin was in assuming that the company would treat his administrative appeals in a consistent and

coherent manner. The futility rule permitted him to act on that assumption, and accordingly the

district court must process his claim. 

III.

For these reasons, we reverse and remand the case for further proceedings consistent with

this opinion.