No. 16-1980 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

_______________ 

DONALD AND HARRIET VAN LOO, 

Plaintiffs-Appellees, 

v.

CAJUN OPERATING COMPANY d/b/a CHURCH'S CHICKEN, 

Defendant-Appellant. 

_______________ 

On Appeal From the United States District Court 

for the Eastern District of Michigan 

Eastern Division, No. 14-cv-10604 

_______________ 

Brief of the Amicus Curiae, Thomas E. Perez,

Secretary of the United States Department of Labor, in support of PlaintiffsAppellees, Requesting Affirmance 

_______________ 

M. PATRICIA SMITH

Solicitor of Labor

G. WILLIAM SCOTT

Associate Solicitor for Plan Benefits 

Security

ELIZABETH HOPKINS

Counsel for Appellate and Special 

Litigation 

United States Department of Labor

200 Constitution Avenue NW, N-4611

Washington, DC 20210
i 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES .................................................................................... ii

QUESTION PRESENTED ........................................................................................1

STATEMENT OF IDENTITY, INTEREST AND AUTHORITY TO FILE ........... 1

STATEMENT OF THE CASE .................................................................................. 2

SUMMARY OF ARGUMENT ................................................................................. 7

ARGUMENT ............................................................................................................. 9

THE DISTRICT COURT IMPOSED A PROPER REMEDY UNDER ERISA 

SECTION 502(a)(3) FOR THE FIDUCIARY BREACHES COMMITTED BY 

CHURCH'S IN MISLEADING DECEDENT DONNA VAN LOO 

CONCERNING THE EXTENT OF HER LIFE INSURANCE COVERAGE BY 

REQUIRING CHURCH'S TO PAY HER BENEFICIARIES THE AMOUNT 

OF THE MISREPRESENTED COVERAGE ........................................................ 9

CONCLUSION ........................................................................................................20

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF SERVICE 
ii

TABLE OF AUTHORITIES

Federal Cases

Berlin v. Mich. Bell Tel. Co.,

858 F.2d 1154 (6th Cir. 1988) ..............................................................................10

Brown v. United of Omaha Life Ins. Co.,

No. 15-4293, 2016 WL 4887516 (6th Cir. Sept. 14, 2016)..................................14

CIGNA Corp. v. Amara,

563 U.S. 421 (2011)...................................................................................... passim

Deschamps v. Bridgestone Americas, Inc. Salaried Emps Ret. Plan,

840 F.3d 267 (6th Cir. Sept. 2016)................................................................ 13, 19

Donovan v. Bierwirth,

754 F.2d 1049 (2d Cir. 1985) ...............................................................................19

Donovan v. Cunningham,

716 F.2d 1455 (5th Cir. 1983) ................................................................................1

Drennan v. Gen. Motors Corp.,

977 F.2d 246 (6th Cir. 1992) ............................................................................ 9-10

James v. Pirelli Armstrong Tire Corp.,

305 F.3d 439 (6th Cir. 2002) ................................................................................10

Jennings v. Stephens,

-- U.S. --, 135 S. Ct. 793 (2015) ...........................................................................13

Kim v. Fujikawa,

871 F.2d 1427 (9th Cir. 1989) ..............................................................................19

Leigh v. Engle,

727 F.2d 113 (7th Cir. 1984) ................................................................................19

Marks v. Newcourt Credit Grp., Inc.,

342 F. 3d 444 (6th Cir. 2003) ...............................................................................12
iii

Federal Cases-(cont.)

Rainey v. Sun Life Assur. Co. of Canada,

No. 3-13-0612, 2014 WL 4979335 (M.D. Tenn. Oct. 6, 2014)...........................11

Roth v. Sawyer-Cleator Lumber Co.,

61 F.3d 599 (8th Cir. 1995) ..................................................................................19

Sec'y. of U.S. Dep't of Labor v. Gilley,

290 F.3d 827 (6th Cir. 2002) ................................................................................19

Silva v. Metro. Life Ins. Co.,

762 F.3d 711 (8th Cir. 2014) ................................................................................17

Sprague v. Gen. Motors Corp.,

133 F.3d 388 (6th Cir. 1998) ......................................................................... 12, 16

Stiso v. Int'l Steel Grp.,

604 F. App'x 494 (6th Cir. 2015)................................................................... 13, 14

Van Loo v. Cajun Operating Co.,

64 F. Supp. 3d 1007 (E.D. Mich. 2014) ...........................................................5, 12

Van Loo v. Cajun Operating Co.,

No. 14-CV-10604, 2015 WL 7889034 (E.D. Mich. Dec. 4, 2015)............. 3 n.1, 6

Van Loo v. Cajun Operating Co.,

No. 14-CV-10604, 2016 WL 3137822, (E.D. Mich. June 6, 2016)............. passim

Federal Statutes

Employee Retirement Income Security Act of 1974, Title I

as amended, 29 U.S.C. 1001 et seq.:

Section 404, 29 U.S.C. § 1104................................................................................7

Section 502, 29 U.S.C. § 1132................................................................................1

Section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B)...................................................5

Section 502(a)(3), 29 U.S.C. § 1132(a)(3) ................................................... passim
iv

Federal Statutes-(cont.)

Section 505, 29 U.S.C. § 1135................................................................................1

Miscellaneous

Fed. R. App. P. 29 (a) ..................................................................................................

George G. Bogert & George T. Bogert, The Law of Trusts and Trustees § 861

(2d. ed. 1995)........................................................................................................12
QUESTION PRESENTED

As restated by the Secretary of Labor, as amicus curiae, the question 

presented is:

Whether beneficiaries of a deceased participant in an employer-sponsored

life insurance plan may obtain monetary relief under section 502(a)(3) of the 

Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(a)(3), in 

the amount of misrepresented plan coverage to redress a breach of fiduciary duty 

involving these misrepresentations where there was no direct evidence that the 

deceased plan participant detrimentally relied on the misrepresentations.

STATEMENT OF IDENTITY, INTEREST AND AUTHORITY TO FILE

The Secretary of Labor has primary authority to interpret and enforce the 

provisions of Title I of ERISA to ensure fair and impartial plan administration and 

compliance with ERISA's requirements. See 29 U.S.C. §§ 1132, 1135; Donovan v. 

Cunningham, 716 F.2d 1455, 1462-63 (5th Cir. 1983). The Secretary has a 

substantial interest in ensuring that plan fiduciaries provide plan participants with 

accurate information so that plan participants can make informed decisions about 

their benefits. The Secretary likewise has a substantial interest, both in his own 

cases and in private litigation, in ensuring that remedies for fiduciary breaches are 

interpreted broadly to allow courts flexibility to grant make-whole financial relief 

to plan participants and their beneficiaries who have been harmed by fiduciary 
2

breaches, even or perhaps especially where it is difficult or impossible to establish 

precisely what would have happened in the absence of a breach. Thus, particularly 

in cases involving misrepresentations to a plan participant who is now deceased, 

where it will often be hard to recreate what would have happened if the decedent 

had been given proper information while alive, the Secretary has a strong interest 

in rules that resolve doubts concerning the extent of harm against the breaching 

fiduciaries, and that do not require a showing of detrimental reliance in the strict 

sense. The Secretary files this brief pursuant to Federal Rule of Appellate 

Procedure 29(a). 

STATEMENT OF THE CASE

1. Donna Van Loo was a participant in an ERISA-covered life insurance 

plan (the "Plan"), sponsored and administered by her employer, Defendant 

Church's. Corrected First Am. Compl. ("Am. Compl.") ¶¶ 14, 10. At the time she 

died, Van Loo had both basic and supplemental life insurance through policies 

issued by Reliance Standard Life Insurance Company under the Plan. Id. ¶ 14. 

She designated her parents, Plaintiffs Donald and Harriet Van Loo, as her 

beneficiaries. Id. ¶ 2. 

Benefits under the Plan were calculated as multiples of the participant's 

salary. Basic life insurance was roughly equivalent to a participant's annual 

earnings, while participants could choose up to five times their salary in 
3

supplemental life insurance with certain limitations. See Van Loo v. Cajun 

Operating Co., No. 14-CV-10604, 2016 WL 3137822, at *1 (E.D. Mich. June 6, 

2016). The Plan provided that "'[a]mounts of insurance over $300,000 are subject 

to our approval of a person's proof of good health.'" Id. (quoting Plan at PageID 

2022); see also Am. Compl. ¶ 58.

On November 11, 2007, Van Loo increased her supplemental life insurance 

by submitting an open enrollment change form for 2008. Am. Compl. ¶ 22. At the 

time, her salary was $100,000, and she selected supplemental coverage of three 

times her salary, and thus crossed the $300,000 threshold. Id. ¶¶ 18, 22. The open 

enrollment form stated: "If you wish to increase your supplemental life coverage, 

you may be required to submit an evidence of insurability form. If so, one will be 

mailed to you." Van Loo, 2016 WL 3137822, at *2. But no evidence of 

insurability form was mailed to her at that time, even though her premiums were 

accepted. Id.1

In 2011, Van Loo submitted another open enrollment change form, 

increasing her supplemental coverage to four times her salary. Am. Compl. ¶ 28. 

 

1

 Although Church's does not appear to dispute that it did not send her an evidence 

of insurability form in 2008, in its decision denying her benefits claim against 

Reliance, the district court deferred to an assertion by Reliance, as claims 

administrator, that it sent such a form to Van Loo three years later in December 

2010, which apparently was not connected with Van Loo submitting any open 

enrollment change form. Van Loo v. Cajun Operating Co., No. 14-CV-10604, 

2015 WL 7889034, at *7 (E.D. Mich. Dec. 4, 2015). 
4

Van Loo maintained this election for 2012 and 2013. Id. ¶¶ 30, 32. After Van Loo 

submitted her enrollment form for 2013, Church's computer system "generated a 

message congratulating her on 'completing [her] benefits enrollment for 2013.'" Id.

¶ 33 (revision in original). Throughout her employment, Van Loo submitted her 

enrollment forms directly to Church's, and Church's deducted Van Loo's premium 

payments directly from her paycheck. At the time of her death in 2013, Van Loo's 

premium payments were $179.74 bi-weekly, which included $97.02 for the 

supplemental insurance. Id. ¶ 34. 

In December 2012, Van Loo became ill and went on disability leave. Am. 

Compl. ¶ 35. Church's subsequently sent Van Loo a letter stating that she would 

have to submit her life insurance premium payments directly to Church's, since she 

was no longer receiving regular paychecks. Id. ¶ 37. Van Loo remained on 

disability – and continued to pay her life insurance premiums directly to Church's –

until she passed away on March 4, 2013. Id. ¶¶ 38, 36. Soon after Van Loo's 

death, plaintiffs submitted a proof of loss claim for $614,000, the full amount of 

the coverage Van Loo had selected. Id. ¶ 39.

At the time of her death, Van Loo was earning $122,200 per year. Am. 

Compl. ¶ 39. Her basic life insurance benefit under the Plan was $125,000, and 

her supplemental benefit was $489,000. Id. ¶ 46. She had not purchased other life 

insurance. Van Loo, 2016 WL 3137822, at *10.
5

Plaintiffs' claim for $614,000 was partially denied by Reliance on the basis 

that Van Loo had not submitted an evidence of insurability form and thus was not 

eligible for coverage above $300,000. Am. Compl. ¶¶ 40-41. Thus, Reliance 

denied plaintiffs $314,000 in coverage which their daughter had paid for with biweekly premiums and which she had been told she had. Plaintiffs contend that 

Van Loo never received an eligibility of insurance form and was never informed 

that she needed to submit a form to be eligible for life insurance benefits above 

$300,000. Id. ¶¶ 42-43.

2. On February 10, 2014, plaintiffs filed a complaint in the United States 

District Court for the Eastern District of Michigan alleging five claims against 

Reliance Standard Life Insurance Company, the life insurance provider and claims 

administrator, and Church's, the Plan sponsor and plan administrator. On 

December 1, 2014, the Court granted Reliance's motion to dismiss Counts II 

through V of the complaint and granted in part and denied in part Church's motion 

to dismiss. Van Loo v. Cajun Operating Co., 64 F. Supp. 3d 1007, 1033 (E.D. 

Mich. 2014). The remaining claims were a claim for denial of benefits under 

ERISA section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), against Reliance (Count 

I), and a claim against Church's for equitable relief under ERISA section 502(a)(3), 

29 U.S.C, § 1132(a)(3), to remedy fiduciary breaches in misleading Van Loo about 

her coverage.
6

On June 5, 2015, plaintiffs filed a corrected amended complaint. Soon after, 

the plaintiffs and Reliance filed cross-motions for judgment on the administrative 

record as to Count I. On December 4, 2015, the Court granted Reliance's motion 

and denied the plaintiffs' motion, concluding that plaintiffs were not entitled to 

benefits under the terms of the Plan. 2015 WL 7889034, at *11. 

Plaintiffs then filed a motion for summary judgment on the remaining claim 

for equitable relief (Count II) against Church's, and Church's filed a cross-motion 

for summary judgment. On June 6, 2016, the Court granted the plaintiffs' motion 

for summary judgment and denied the motion filed by Church's. Van Loo v. Cajun 

Operating Co., No. 14-CV-10604, 2016 WL 3137822 (E.D. Mich. June 6, 2016). 

In its June 6, 2016 decision, the district court concluded that Church's acted 

as the Plan Administrator for purposes of issuing evidence of insurability forms to 

Plan participants. 2016 WL 3137822, at *6. It also concluded that no such form 

was mailed to Van Loo in 2008. Id. at *2. It then held that "Church's 

communications with Van Loo throughout her employment constituted material 

misrepresentations regarding her level of effective coverage." Id. at *7. These 

communications included accepting Van Loo's enrollment forms each year, 

sending a computer-generated message in 2012 congratulating Van Loo on having 

completed her benefits enrollment, stating on some of the enrollment forms that an 

evidence of insurability form would be mailed to Van Loo if one was needed, 
7

deducting premium payments – which increased as Van Loo increased her 

coverage – from Van Loo's paycheck, and directing Van Loo to send her premium 

payments to Church's and acknowledging that they had been received when she 

was out on disability leave. Id. The district court held that these 

misrepresentations of coverage constituted a fiduciary breach under ERISA section 

404, 29 U.S.C. § 1104, id. at *9, and found Church's liable to plaintiffs under 

ERISA section 502(a)(3), 29 U.S.C, § 1132(a)(3), in the amount of $314,000, the 

amount of the additional life insurance proceeds to which they, as beneficiaries, 

would have been entitled but for Church's fiduciary breaches. Id. at *11. 

SUMMARY OF ARGUMENT

Under the Supreme Court's decision in CIGNA Corp. v. Amara, 563 U.S. 

421 (2011), plaintiffs, beneficiaries under their deceased daughter's life insurance 

plan, were not required to establish detrimental reliance for the court to surcharge 

Church's in the amount of the insurance coverage that it misled the decedent into 

thinking she had obtained. Instead, in order to obtain this remedy under the 

flexible approach applied by courts of equity, the Van Loos were merely required 

to establish that they had been harmed by the fiduciary breaches committed by 

Church's, breaches which Church's does not challenge on appeal. 

Such harm need not be shown through direct evidence of what would have 

happened in the absence of a breach, evidence that would often be difficult if not 
8

impossible to obtain, particularly where the plan participant is deceased. Instead, 

circumstantial evidence of harm may suffice. And, as here, where the beneficiaries 

of a deceased plan participant have established fiduciary breaches based on 

misrepresentations to the decedent about life insurance coverage, a showing that 

the decedent elected the challenged coverage under the plan, paid premiums and 

did not seek alternative coverage, suffices to establish harm under Amara. Thus, 

the district court quite rightly rejected Church's argument that it was entitled to 

summary judgment because it offered proof that Reliance would have rejected her 

for supplemental coverage above $300,000 given her medical conditions or 

because Reliance evidently sent her an eligibility form two years later. As the 

district court found, the uncontested evidence established that Church's fiduciary 

breaches in misrepresenting her life insurance coverage caused her to lose, 

irrevocably, the ability to make alternate arrangements for her parents upon her 

death at the time that she passed the $300,000 threshold. 

Because a strict showing of detrimental reliance is not required to obtain a 

surcharge remedy against a breaching fiduciary of the sort sought here, the 

plaintiffs were not required to show that their daughter's reliance on Church's was 

reasonable. And, in any event, the district court properly rejected Church's 

argument that Van Loo's reliance was unreasonable given the language in the 

governing policy requiring her to submit an evidence of insurability form because 
9

there was no evidence the policy had been made available to her, and the materials 

that were available merely stated that a form would be provided to her if necessary. 

Finally, even if some showing of detrimental reliance were required, this 

Court has recently made clear that the detriment need not be economic, but may be 

a loss of an opportunity to improve (or protect) one's position. And while it is 

certainly possible that Van Loo might have had to pay more for alternative 

coverage had she been turned down by Reliance, the district court quite correctly 

resolved any doubts about this against Church's. Resolving doubts about the extent 

of the harm against the breaching fiduciary is consistent with longstanding 

decisions of this Circuit and most others. 

ARGUMENT

THE DISTRICT COURT IMPOSED A PROPER REMEDY UNDER 

ERISA SECTION 502(a)(3) FOR THE FIDUCIARY BREACHES 

COMMITTED BY CHURCH'S IN MISLEADING DECEDENT 

DONNA VAN LOO CONCERNING THE EXTENT OF HER LIFE 

INSURANCE COVERAGE BY REQUIRING CHURCH'S TO PAY 

HER BENEFICIARIES THE AMOUNT OF THE 

MISREPRESENTED COVERAGE

In its brief on appeal, Church's does not challenge the district court's 

conclusion that it was acting in a fiduciary capacity in its communications with the 

decedent; nor does it challenge that its actions were misleading, and thus 

constituted breaches of its fiduciary duties. Appellant's Br. 17. This is not 

surprising given the case law in this Circuit. Drennan v. Gen. Motors Corp., 977 
10

F.2d 246, 251 (6th Cir. 1992) ("[m]isleading communications to plan participants 

'regarding plan administration (for example, eligibility under a plan, the extent of 

benefits under a plan) will support a claim for a breach of fiduciary duty'") 

(quoting Berlin v. Mich. Bell Tel. Co., 858 F.2d 1154, 1163 (6th Cir. 1988)). 

Instead, the sole contention made by Church's on appeal is that "Plaintiffs are not 

entitled to relief" under ERISA section 502(a)(3), "because, even assuming 

Church's was acting in a fiduciary capacity, there is no evidence that Ms. Van Loo 

detrimentally relied on misrepresentations regarding her level of coverage." 

Appellant's Br. 15. In this regard, they argue that "[t]here is . . . no evidence that 

Ms. Van Loo was discouraged from obtaining other supplemental life insurance 

benefits, or, more importantly, that she could have had she tried." Id.

The district court correctly rejected Church's argument, however, based on 

uncontested, albeit circumstantial, evidence, rather than direct evidence. Quoting 

the Sixth Circuit's decision in James v. Pirelli Armstrong Tire Corp., 305 F.3d 439, 

449 (6th Cir. 2002), the district court concluded that Van Loo "relied on [Church's] 

misrepresentations to [her] detriment." 2016 WL 3137822, at *10 (noting that the 

plaintiffs in James "testified that the representations that their health benefits would 

remain the same for the rest of their lives had encouraged them to take early 

retirement"). The district court also relied on another district court in the Sixth 

Circuit that held that a plaintiff "'reasonably relied to her detriment upon the 
11

misrepresentations of [a plan fiduciary] by paying premiums and by foregoing 

alternative coverage.'" Id. (quoting Rainey v. Sun Life Assur. Co. of Canada, No. 

3-13-0612, 2014 WL 4979335, at *2 (M.D. Tenn. Oct. 6, 2014)). Unlike in James, 

however, which did not involve life insurance, the district court noted that Van Loo 

could not testify or be deposed in the litigation because she was deceased. 2016 

WL 3137822, at *10. Nevertheless, the court reasoned that "[t]he fact that Van 

Loo continued to enroll in – and increase the amount of – her supplemental life 

insurance shows that she expected those increases to be effective." Id. And noting 

that nothing in the record suggested that Van Loo sought alternative coverage, the 

court further reasoned that "it is obvious that a plan participant, operating under the 

belief that her elected coverage was effective, would not seek coverage elsewhere." 

Id. 

The uncontested facts upon which the district court relied – that the decedent 

paid premiums and did not get alternative coverage – suffice to establish a 

circumstantial case of harm and causation. This is because, under the Supreme 

Court's decision in CIGNA Corp. v. Amara, 563 U.S. 421 (2011), there is no strict 

requirement that plaintiffs establish detrimental reliance to show that they have 

been harmed by a fiduciary breach in misleading them about coverage in order to 

obtain a remedy. In Amara, the Court held that where a plaintiff is seeking the 

remedy of surcharge against a breaching fiduciary, courts should apply "a flexible 
12

approach" to determining whether, under a preponderance of the evidence 

standard, a participant or beneficiary has been harmed by a fiduciary breach, an 

approach which "belies a strict requirement of 'detrimental reliance.'" Id. at 444 

(quoting G. Bogert & G. Bogert, Trusts and Trustees § 861, at 4, that "equity 

courts 'would mold the relief to protect the rights of the beneficiary according to 

the situation involved'"). 

The plaintiffs in this case specifically sought, among other remedies, to 

surcharge Church's for the loss of the insurance coverage. In fact, in an earlier 

opinion on defendants' motion to dismiss, the district court expressly noted that 

plaintiffs could not proceed on an equitable estoppel claim, which requires 

detrimental reliance, but rather could proceed instead on their claim for equitable 

remedies under section 502(a)(3). Van Loo v. Cajun Operating Co., 64 F. Supp. 

3d 1007, 1028 (E.D. Mich. 2014) (dismissing equitable estoppel claim based on 

circuit precedents – Sprague v. Gen. Motors Corp., 133 F.3d 388, 403 (6th Cir. 

1998), and Marks v. Newcourt Credit Grp., Inc., 342 F. 3d 444, 456 (6th Cir. 2003) 

– that do not allow equitable estoppel to vary the terms of unambiguous plan 

documents, even if a plaintiff has not seen them). And, while the district court 

cited James, a pre-Amara case from the Sixth Circuit requiring detrimental reliance 

for claims based on fiduciary misrepresentation, and held that the plaintiffs met 

that standard, its flexible approach in making this finding is certainly consistent 
13

with a broader surcharge remedy as envisioned in Amara and can therefore be 

affirmed on that basis. See Jennings v. Stephens, -- U.S. --, 135 S. Ct. 793, 796 

(2015) (the "prevailing party" may "seek[ ] to enforce a district court's judgment," 

without relying on "its reasoning"). 

It is true that this Court has cited James in at least one post-Amara case as 

requiring detrimental reliance in a misrepresentation case. See Deschamps v. 

Bridgestone Americas, Inc. Salaried Emps. Ret. Plan, 840 F.3d 267, 273 (6th Cir.

2016). But the plaintiffs in that case were asking for an equitable estoppel remedy, 

and it is not clear whether they additionally asked for surcharge, as the plaintiffs 

did in this case. Id. Certainly there was no discussion of surcharge or of the 

Supreme Court's discussion of surcharge in Amara in that decision, and for that

reason, we think this discussion in Deschamps is best read as limited to the

estoppel context, and not as a rejection of the Supreme Court's conclusion in 

Amara that a showing of detrimental reliance is not required for a surcharge 

remedy. 

In fact, in two recent decisions, the Sixth Circuit has taken a flexible 

approach to harm in similar contexts and has recognized that detrimental reliance 

is not necessary to obtain a surcharge remedy. In Stiso v. International Steel 

Group., 604 F. App'x 494, 496 (6th Cir. 2015) (unpublished), the plaintiff only 

sought equitable estoppel for the defendants' disloyal interpretation of the plan 
14

documents, but the court acknowledged that "[t]he Supreme Court in Amara held 

that the relevant substantive provisions of ERISA do not set forth any particular 

standard for determining harm." Id. at 500. On this basis the Sixth Circuit held 

that the plaintiff could seek "surcharge" for fiduciary misconduct without 

establishing detrimental reliance. Id. Similarly, in Brown v. United of Omaha Life 

Ins. Co., No. 15-4293, 2016 WL 4887516, at *7 (6th Cir. Sept. 14, 2016) 

(unpublished), the Sixth Circuit agreed with two sister circuits in recognizing the 

"broad availability of equitable remedies where a plan fiduciary accepts premiums

and then denies paid-for benefits pursuant to the terms of the plan." In Brown, the 

insurance company defendant accepted premiums for supplemental life insurance 

but then ultimately denied the plaintiff coverage because he failed to submit 

"evidence of insurability." Id. at *1. The court recognized that equitable remedies, 

such as surcharge, reformation of the contract, or estoppel, might be appropriate. 

Id. at *6. 

The district court properly concluded that, by electing additional coverage 

through her ERISA plan, paying the premiums for that coverage and foregoing 

alternative coverage, Van Loo relied on and was thus harmed by Church's breaches 

in misleading her about her coverage. Indeed, it is apparent that Church's actual 

complaint is that it was held liable for the amount of misstated coverage even 

though the Van Loos did not (and could not) offer any direct proof of reliance, 
15

such as affidavits or deposition testimony from their daughter about what she 

would have done if the breach had not taken place, or indeed make any assertions 

about exactly what would have happened had their daughter been given the 

evidence of insurability form in 2008. But, particularly in a case such as this one 

concerning life insurance benefits, where the covered party is of course deceased 

and cannot offer direct proof in the form of testimony, plan beneficiaries will often 

be hard pressed to offer anything other than indirect proof of harm caused by the 

fiduciary breaches in misleading a participant about coverage. In this context, the 

uncontested fact that the decedent sought and paid for supplemental coverage and 

did not seek coverage elsewhere ought to be sufficient to establish a circumstantial 

case of harm, as the district court held. 

Despite the offer of proof from Church's that Reliance would not have 

allowed Van Loo to obtain the supplemental benefits given her health conditions, it 

is indisputable, as the district court recognized, that she lost the opportunity to 

obtain alternative coverage or to otherwise provide for her parents upon her death, 

as she evidently wanted to do. 2016 WL 3137822, at *11 (noting that, if denied 

coverage under her plan, "she would have been in a position to make informed 

decisions about how to ensure that her beneficiaries would receive the amount of 

money she wanted them to receive upon her death"). Thus, based on the Supreme 

Court's suggestion in Amara, the actual harm necessary to obtain a surcharge 
16

remedy from a breaching fiduciary may consist of the loss by a plan participant of 

her rights "protected by ERISA or its trust-law antecedents," 563 U.S. at 444, in 

this case, the right to be given the truthful information necessary to protect her 

interests in providing for her parents upon her death. It is hard to imagine that 

"Congress would have wanted to bar [such an] employee[] from relief." Id.

Although Church's insists that any reliance on its collection and acceptance 

of premiums and its letter congratulating Van Loo on her coverage was not 

reasonable given that the policy required her to submit an evidence of insurability 

form, Appellant's Br. 28-29, reasonable reliance is a requirement to obtain 

equitable estoppel, but is not a requirement for surcharging a fiduciary for the 

consequences of its breaches. Compare Amara, 563 U.S. 443-44, with Sprague, 

133 F.3d at 404 ("estoppel requires reasonable or justifiable reliance . . . [and such] 

reliance can seldom, if ever, be reasonable or justifiable if it is inconsistent with 

the clear and unambiguous terms of plan documents available to or furnished to the 

party"). 

Because promissory estoppel is, in effect, an alternative way to get a plan to 

pay benefits, there is some sense to imposing a requirement that the plaintiff show 

ambiguity in the plan terms in order to establish that any reliance on the 

misrepresentation was reasonable. This is because, where a participant or 

beneficiary obtains benefits under a promissory estoppel theory, these benefits are 
17

paid by the plan, and if the plan is funded by a trust, this presumably unexpected 

drain on the assets of the trust could affect the other plan participants. Conversely, 

a more flexible approach to establishing harm in the surcharge context makes 

sense. Where a plan participant or beneficiary seeks to surcharge a breaching 

fiduciary for the consequences of its breach, the plan and other participants will not 

be directed affected in any way, and the terms of the plan and the bargain struck by 

the parties also are not directly implicated. 

In any event, the district court determined that Church's offered no evidence 

that the policy was posted on the company's intranet or that it was otherwise made 

available to Van Loo. 2016 WL 3137822, at *11. And "[t]he materials that were 

available merely repeated the statement Church's made on its open enrollment 

forms – that if an EIF [evidence of insurability form] were needed, one would be 

provided." Id. While Church's contends on appeal that undisputed testimony that 

the district court accepted during an earlier ruling in the case established that 

Reliance mailed an EIF in 2010, the district court logically reasoned in its 

summary judgment decision that, "even accepting that Van Loo received the EIF 

that Reliance mailed in 2010, this was too late: Van Loo was entitled to apply for 

coverage based on her health at the time she crossed the $300,000 guaranteed issue 

threshold, which was 2008." Id. (citing Silva v. Metro. Life Ins. Co., 762 F.3d 

711, 718 (8th Cir. 2014), for the proposition that insurance companies are unlikely 
18

to allow someone who is very ill to take out a large life insurance policy "shortly 

before death"). 

Finally, although Church's made and continues to make much of the fact that 

Van Loo had Hepatitis C (and other health issues) when she applied for 

supplemental coverage above the threshold in 2008, and insists and offered some 

proof that Reliance would have denied coverage on that basis, Appellant's Br. 17-

19, the district court, as we have discussed, was not convinced that she could not 

have obtained alternative life insurance coverage in the amount she desired. The 

court quite correctly noted that "the point is that Van Loo was entitled to be 

evaluated in 2008, not that she was entitled to a particular outcome in terms of 

coverage." 2016 WL 3137822, at *11. And, as the court pointed out, had she been 

denied coverage at that time, "she would have been in a position to make informed 

decisions about how to ensure that her beneficiaries would receive the amount of 

money she wanted them to receive upon her death," including by seeking 

"additional coverage from another provider." Id. But because "Church's took this 

choice away from Van Loo when it failed to send her an EIF in 2008 and yet still 

led her to believe that her supplemental coverage election became effective," the

court quite rightly concluded that her beneficiaries made the requisite showing of 

harm to be entitled to the amount of coverage that Van Loo elected. Id.
19

Even if some showing of "detrimental reliance" were required here, this 

Court has ruled recently that "[t]he prejudice, or detriment, suffered must be 'actual 

and substantial,' but may be proved by loss of opportunity to improve one's 

position.'" Deschamps 2016 WL 6093183, at *5 (citation omitted). Moreover, the 

harm does not need to be "economic" at all; instead, a lost opportunity to explore 

other options may suffice. Id. at *6. In this case, although it is certainly possible 

that Van Loo would have had to pay more for any insurance coverage in light of 

her health problems if she had been denied by Reliance as Church's contends, 

Appellant's Br. 19, Church's did not present evidence establishing this, and any 

doubts in this regard go to the extent of the remedy and should be resolved in the 

plaintiffs' favor. E.g., Sec'y of U.S. Dep't of Labor v. Gilley, 290 F.3d 827, 830 

(6th Cir. 2002); Donovan v. Bierwirth, 754 F.2d 1049, 1056 (2d Cir. 1985); Leigh 

v. Engle, 727 F.2d 113, 138-39 (7th Cir. 1984); Roth v. Sawyer-Cleator Lumber 

Co., 61 F.3d 599, 602 (8th Cir. 1995); Kim v. Fujikawa, 871 F.2d 1427, 1430-31 

(9th Cir. 1989); see also Deschamps, 840 F.3d at 276 (affirming summary 

judgment on "detrimental reliance" theory to plaintiff because the defendant did 

not establish plaintiff would be worse off if he had the opportunity to explore other 

options).
20

CONCLUSION

For the reasons stated above, the Secretary respectfully requests that the 

Court affirm the decision of the district court. 

Respectfully submitted, 

M. PATRICIA SMITH

Solicitor of Labor

G. WILLIAM SCOTT

Associate Solicitor for 

Plan Benefits Security

/s Elizabeth Hopkins 

ELIZABETH HOPKINS

Counsel for Appellate and Special 

Litigation

United States Department of Labor

Plan Benefits Security Division

200 Constitution Ave., N.W., N-4611

Washington, D.C. 20210

(213) 894-3283
CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 29(d) and 32(a)(7), I certify that this

amicus brief contains 4688 words.

Dated: November 30, 2016

/s Elizabeth Hopkins 

ELIZABETH HOPKINS

United States Department of Labor

Plan Benefits Security Division

200 Constitution Ave., N.W., N-4611

Washington, D.C. 20210

Telephone: (213) 894-3283

Email: hopkins.elizabeth@dol.gov
CERTIFICATE OF SERVICE

I hereby certify that on this day, November 30, 2016, I electronically filed 

the foregoing brief with the Clerk of the Court for the United States Court of 

Appeals for the Sixth Circuit by using the CM/ECF system. I certify that all 

participants in this case are registered CM/ECF users and that service will be 

accomplished by the CM/ECF system.

/s Elizabeth Hopkins 

ELIZABETH HOPKINS

United States Department of Labor

Plan Benefits Security Division

200 Constitution Ave., N.W., N-4611

Washington, D.C. 20210

Telephone: (213) 894-3283

Email: hopkins.elizabeth@dol.gov