1 – OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SHERRY F. ROBERTSON,

No. 3:14-cv-01572-HZ

Plaintiff,

OPINION & ORDER

v.

STANDARD INSURANCE COMPANY,

Defendant.

Michael D. Grabhorn

GRABHORN LAW OFFICE, PLLC 

2525 Nelson Miller Parkway, Suite 107 

Louisville, KY 40223

John C. Shaw

MEGAN E. GLOR ATTORNEYS AT LAW 

621 SW Morrison St., Suite 900 

Portland, OR 97205
2 – OPINION & ORDER

Megan E. Glor

MEGAN E. GLOR ATTORNEYS AT LAW 

707 NE Knott Street, Suite 900

Portland, OR 97212

Attorneys for Plaintiff

Andrew M. Altschul 

BUCHANAN ANGELI ALTSCHUL & SULLIVAN LLP

321 SW 4th Ave., Suite 600 

Portland, OR 97204

Jacqueline J. Herring

Warren Sebastian von Schleicher

SMITTH, VON SCHLEICHER & ASSOCIATES 

180 N. LaSalle St., Suite 3130 

Chicago, IL 60601

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Defendant Standard Insurance Company moves for summary judgment and entry of a 

final order terminating this case as a matter of law. Plaintiff Sherry F. Robertson’s case against 

Defendant has proceeded in this Court over the past three years. Because Plaintiff has already 

received all the relief she is due, the Court grants Defendant’s motion for summary judgment. 

BACKGROUND

On September 30, 2015, this Court granted summary judgment to Plaintiff in her action 

against Defendant under the Employee Retirement Income Security Act of 1974 (“ERISA”). 

Robertson v. Standard Ins. Co., 139 F. Supp. 3d 1190 (D. Or. 2015). The Court found that

Defendant abused its discretion when it terminated Plaintiff’s long-term disability (“LTD”) 

insurance benefits and waiver-of-premium of a life insurance policy benefit. Id. at 1193. The 

Court concluded that Defendant fell far short of fulfilling its fiduciary duty to Plaintiff. Id. at 

1210. As the Court explained, Defendant’s denial of Plaintiff’s claim was the result of the failure 
3 – OPINION & ORDER

to conduct an independent medical examination, the failure to fully consider a contrary SSA 

determination, the failure to provide Defendant’s independent experts with all of the relevant 

evidence, and the unjustified reliance on an unreasonable Functional Capacity Evaluation. Id.

On November 20, 2015, this Court entered a judgment in which it ordered Plaintiff’s 

long-term disability benefits reinstated effective October 18, 2013 and awarded for the remainder 

of the “Own Occupation” period. Judgment, ECF 43. However, as to Plaintiff’s claim for longterm disability benefits under the “Any Occupation” definition of disability, the Court remanded 

the case to Defendant for an administrative determination. Id. In a separately issued Opinion & 

Order, the Court explained that the administrative record had not been adequately developed 

regarding the “Any Occupation” standard. O&O, Nov. 13, 2015, ECF 42. 

A year later, on November 4, 2016, this Court granted Plaintiff’s motion to reopen the 

case because Defendant had failed to timely render a decision on Plaintiff’s right to receive 

disability benefits under the “Any Occupation” standard. Robertson v. Standard Ins. Co., 218 F. 

Supp. 3d 1165 (D. Or. 2016). The Court set a deadline for Plaintiff to file an amended complaint. 

Sched. Order, ECF 56.

On December 16, 2016, Plaintiff filed an amended complaint in which she asserts four 

claims: (1) breach of contract, enforceable through 29 U.S.C. § 1132(a)(1)(B); breach of 

fiduciary duty, enforceable through 29 U.S.C. § 1132(a)(3); (3) disgorgement, enforceable 

through 29 U.S.C. § 1132(a)(1)(B) and 1132(a)(3); and (4) attorneys’ fees and costs, pursuant to 

29 U.S.C. § 1132(g). 

On January 25, 2017, Defendant concluded its administrative review and approved 

Plaintiff’s disability claim under the “Any Occupation” standard. Def.’s Mot. Ex. A, ECF 68-1. 
4 – OPINION & ORDER

Defendant paid Plaintiff all benefits due, attorneys’ fees and costs in full, and prejudgment 

interest. Def.’s Mot. Ex. B, ECF 68-2.

STANDARDS

Summary judgment is appropriate if there is no genuine dispute as to any material fact 

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The 

moving party bears the initial responsibility of informing the court of the basis of its motion, and 

identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any,’ which it believes demonstrate the 

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(quoting Fed. R. Civ. P. 56(c)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine 

issue of material fact, the burden then shifts to the nonmoving party to present “specific facts” 

showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927–28 

(9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the 

pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 

(9th Cir. 2007) (citing Celotex, 477 U.S. at 324). 

The substantive law governing a claim determines whether a fact is material. Suever v. 

Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the 

light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d 

1108, 1112 (9th Cir. 2011). 

If the factual context makes the nonmoving party’s claim as to the existence of a material 

issue of fact implausible, that party must come forward with more persuasive evidence to support 
5 – OPINION & ORDER

his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 587 (1986).

DISCUSSION

Defendant moves for summary judgment and to terminate this lawsuit. Defendant argues 

that, once it approved Plaintiff’s disability claim under the “Any Occupation” standard, Plaintiff 

received all of the relief she sought in her breach of contract claim, under 29 U.S.C. § 

1132(a)(1)(B), and that further equitable relief under 29 U.S.C. § 1132(a)(3) is not permissible. 

Defendant argues that Plaintiff seeks a double recovery. Plaintiff contends that she is entitled to 

seek § 1132(a)(3) relief, notwithstanding the fact that Defendant has approved her long-term 

disability benefits and has paid her disability benefits, prejudgment interest, and attorneys’ fees 

and costs. According to Plaintiff, the equitable relief she seeks under her breach of fiduciary duty 

and disgorgement claims is additional, not duplicative, relief. The Court agrees with Defendant 

and grants summary judgment in its favor.

Under 29 U.S.C. § 1132(a)(1)(B), a participant or beneficiary of an insurance plan 

governed by ERISA may bring suit to “recover benefits due to him under the terms of his plan, 

to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under 

the terms of the plan.” Under 29 U.S.C. § 1132(a)(3), a participant, beneficiary, or fiduciary may 

bring suit to enjoin any act or practice that violates ERISA or the terms of the plan, or to obtain 

other appropriate equitable relief to either redress those violations or enforce any provisions of 

ERISA or the plan. Such equitable relief can include “make whole relief” in certain 

circumstances. See, e.g., CIGNA Corp. v. Amara, 563 U.S. 421, 440–42 (2011) (finding “make 

whole relief” potentially available under § 1132(a)(3) based on circumstances resembling fraud). 

However, § 1132(a)(3) functions “as a safety net, offering appropriate equitable relief for injuries 
6 – OPINION & ORDER

caused by violations that [§ 1132] does not elsewhere adequately remedy.” Varity Corp. v. 

Howe, 516 U.S. 489, 512 (1996). As the Supreme Court explained in Varity, “where Congress 

elsewhere provided adequate relief for a beneficiary's injury, there will likely be no need for 

further equitable relief, in which case such relief normally would not be appropriate.” Id. at 515

(internal quotation marks omitted).

In 2016, the Ninth Circuit adopted the Eighth Circuit’s position that a plaintiff can plead 

§ 1132(a)(1)(B) and § 1132(a)(3) claims as alternative theories of liability. Moyle v. Liberty Mut. 

Retirement Ben. Plan, 823 F.3d 948, 961 (2016) (agreeing with the Eighth Circuit’s application 

of the Supreme Court’s Amara decision). However, the Court made clear that, while a plaintiff 

may plead these alternative theories, a plaintiff is prohibited from “duplicate recoveries when a 

more specific section of the statute, such as § 1132(a)(1)(B), provides a remedy similar to what 

the plaintiff seeks under the equitable catchall provision, § 1132(a)(3).” Id. “This approach . . . 

allows plaintiff to plead alternate theories of relief without obtaining double recoveries.” Id.

The Ninth Circuit also cited a Sixth Circuit case with approval. Id. (citing Rochow v. Life 

Ins. Co. of N. Am., 780 F.3d 364 (6th Cir. 2015)). In Rochow, the Court found that the plaintiff’s 

“injury was remedied when he was awarded the wrongfully denied benefits and attorney’s fees.” 

Rochow, 780 F.3d at 375. Thus, the plaintiff could not pursue a breach of fiduciary duty claim 

under § 1132(a)(3), because the injury from the breach of fiduciary duty claim was not “based on 

an injury separate and distinct from the denial of benefits or where the remedy afforded by 

Congress under [§ 1132(a)(1)(B)] is otherwise shown to be inadequate.” Id. at 372. In other 

words, a § 1132(a)(3) claim for equitable relief must be more than “a repackaged claim for 

benefits wrongfully denied.” Id. at 375. 
7 – OPINION & ORDER

Here, Plaintiff’s injury was the denial of benefits by Defendant. Plaintiff was forced to 

reopen her case and file an amended complaint because Defendant failed to render a decision on 

Plaintiff’s long-term disability claim within 45 days of this Court’s remand. In the amended 

complaint, Plaintiff’s breach of contract claim pursuant to § 1132(a)(1)(B) sought “her past 

disability income benefits, to receive reinstatement for payment of her disability income benefits, 

to obtain declaratory relief, and to recover interest.” Compl. ¶ 24. It is undisputed that Plaintiff 

has now received all benefits due, her attorneys’ fees and costs, and prejudgment interest.1Thus, 

Plaintiff’s breach of contract claim is moot. Now that Plaintiff’s § 1132(a)(1)(B) claim has been 

resolved, the parties dispute whether Plaintiff can proceed with her breach of fiduciary duty and 

disgorgement claims or whether these are merely “repackaged claims for benefits wrongfully 

denied.” See Rochow, 780 F.3d at 375. 

Plaintiff approaches Defendant’s motion as if it were a motion to dismiss under Federal 

Rule of Civil Procedure 12(b)(6). Therefore, Plaintiff argues that her amended complaint 

comports with Amara and Moyle because she is allowed to plead alternate theories of relief. The 

cases Plaintiff cites reinforce the proposition that she can simultaneously state claims for breach 

of contract under § 1132(a)(1)(B) and breach of fiduciary duty and disgorgement under § 

1132(a)(3). See, e.g. Pearson v. Wellmark, Inc., No. 4:15-CV-3164, 2017 WL 2371142, at *4 (D. 

Neb. May 31, 2017) (denying motion to dismiss because the amended complaint did not seek 

duplicative recovery for the same injury); McGlasson v. Long Term Disability Coverage for All 

Active Full-Time & Part-Time Employees, 161 F. Supp. 3d 836, 846 (D. Ariz. 2016) (denying a 

motion to dismiss); Faltermeier v. Aetna Life Ins. Co., No. 15-CV-2255-JAR-TJJ, 2015 WL 

 

1

Plaintiff argues that Defendant “remitted interest calculated at a rate it determined and not at the rate 

sought by [Plaintiff].” Pl.’s Resp. 6, ECF 70. However Plaintiff fails to offer any evidence that a higher 

rate than what this Court awarded in a previous Opinion & Order is warranted. See Judgment, ECF 43 

(awarding pre-judgment interest at the rate prescribed by 28 U.S.C. § 1961); Def.’s Mot. Ex. A, ECF 68-

1. 
8 – OPINION & ORDER

3440479, at *3 (D. Kan. May 28, 2015) (allowing plaintiff to assert alternate theories of relief 

where § 1132(a)(1)(B) relief may not be available).

Defendant’s motion, however, is clearly one for summary judgment. See Def.’s Mot. 3 

(requesting an order pursuant to Federal Rule of Civil Procedure 56(a)); Def.’s Mot. 11 

(requesting dismissal of Plaintiff’s claims “as a matter of law” and citing to cases at the summary 

judgment stage). Therefore, the cases Plaintiff cites regarding pleading standards are inapposite. 

As a matter of law, now that Plaintiff’s § 1132(a)(1)(B) has been resolved, Plaintiff cannot 

proceed with § 1132(a)(3) breach of fiduciary duty and disgorgement claims unless such claims 

stem from an injury separate and distinct from the denial of benefits or where the remedy 

afforded by Congress under § 1132(a)(1)(B) is otherwise shown to be inadequate. Plaintiff fails 

to make such a showing.

Plaintiff’s amended complaint alleges that Defendant failed to provide her with benefits 

she was due. In addition, she alleges numerous ways in which Defendant failed to comply with 

her requests, Department of Labor regulations, ERISA claim regulations, and Policy terms. 

However, she only alleges one injury: the failure to pay her benefits. Therefore, now that 

Defendant has remedied that injury, there is no remaining avenue for Plaintiff to proceed on her 

§ 1132(a)(3) claims. See, e.g., Rochow, 780 F.3d at 375 (“Despite Rochow's attempts to obtain 

equitable relief by repackaging the wrongful denial of benefits claim as a breach-of-fiduciaryduty claim, there is but one remediable injury and it is properly and adequately remedied under § 

502(a)(1)(B)”).

Plaintiff includes in a footnote in her Response a request: “To the extent the Court 

construes Standard’s motion as one for summary judgment, Ms. Robertson requests leave to file 

an appropriate Rule 56(d) affidavit outlining her discovery needs.” Pl.’s Resp. 9 fn. 3, ECF 70.
9 – OPINION & ORDER

However, no discovery is necessary for this Court to determine that the resolution of Plaintiff’s § 

1132(a)(1)(B) claim adequately remedied the denial of Plaintiff’s benefits. Therefore, as several 

courts have ruled in other cases brought by Plaintiff’s attorney, summary judgment without 

discovery is not premature. See, e.g., Blackwell v. Liberty Life Assurance Co. of Boston, No. 

3:15-CV-376-DJH, 2017 WL 927239, at *1 (W.D. Ky. Mar. 8, 2017) (denying discovery as 

unnecessary to make the determination that § 1132(a)(1)(B) can adequately remedy a denial of 

benefits); Milby v. Liberty Life Assurance Co. of Boston, No. 313CV00487CRSCHL, 2016 WL 

6699281, at *3 (W.D. Ky. Nov. 14, 2016) (same).

CONCLUSION

Defendant’s Motion for Entry of a Final Order Terminating the Lawsuit [68] is granted. 

The Court grants summary judgment to Defendant. Accordingly, this case is dismissed.

IT IS SO ORDERED.

Dated this _____________ day of ____________________________, 2017.

 

________________________________________________

MARCO A. HERNÁNDEZ

United States District Judge