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LAW OFFICE OF J. SCOTT WICKLAND

1921 Motor Avenue, Suite A

Kingman, Arizona 86401

Tel: (928) 718-8888

Fax: (928) 718-8889

J. Scott Wickland, Esq.

Arizona State Bar No. 016333

wicklandlaw@gmail.com

Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Theresa Kiefer,

 Plaintiff,

vs.

Lifepoint Hospitals Inc. Welfare Plan, 

and

Lifepoint Welfare Plan Administration 

Committee, 

 Defendants

No.: ______________________

Complaint for Declaratory 

Judgement and Other 

Equitable Relief

 

Plaintiff, Theresa Kiefer, by and through her counsel undersigned, files 

this Complaint:

PRELIMINARY STATEMENT

1. The Employee Retirement Income Security Act (“ERISA”), covers both 

“employee welfare benefit plans” and “employee pension benefit plans.” 29 U.S.C. 

§ 1002(1). An ERISA plan is “any plan, fund, or program...established or maintained 

by an employer...for the purpose of providing...medical, surgical, or hospital care 

or benefits, or benefits in the event of sickness, accident, disability, death 

or unemployment.” Id.

2. ERISA § 104(b)(4), 29 U.S.C. § 1024(b)(4), provides that the plan 

administrator of an ERISA plan must “upon written request of any participant or 

beneficiary, furnish a copy of...instruments under which the plan is established 

or operated.” 

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 3. ERISA § 502(c)(1)(B), 29 U.S.C. § 1132(c)(1)(B), provides that if 

the administrator of the ERISA plan fails to comply with such a request within 

30 days, the court is authorized to award damages to such participant or 

beneficiary in the amount of up to $110 a day from the date of such failure or 

refusal, or order other such relief as the court deems proper. 

4. ERISA § 502(a)(1)(A), 29 U.S.C. § 1132(a)(1)(A), provides that a 

civil action may be brought against an ERISA plan by a participant or beneficiary 

for the relief provided for in subsection (c).

5. ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), provides that a 

civil action may be brought against an ERISA plan by a participant or beneficiary 

to enforce their rights under the terms of the Plan.

6. ERISA § 502(a)(3)(A), 29 U.S.C. § 1132(a)(3)(A), provides that a 

civil action may be brought against an ERISA plan by a participant or beneficiary 

to enjoin any act or practice which violates the terms of the Plan.

7. ERISA § 502(a)(3)(B)(ii), 29 U.S.C. § 1132(a)(3)(B)(ii), provides 

that a civil action may be brought against an ERISA plan by a participant or 

beneficiary to obtain other appropriate equitable relief to enforce the terms 

of the Plan.

JURISDICTION AND VENUE

 8. The Court has jurisdiction of the claims for relief based upon the 

civil enforcement provisions of ERISA, 29 U.S.C. §§ 1132 (a) (1) (A), 

1132(a)(1)(B), and 28 U.S.C. §§ 1331. 

9. Relief is also sought under 28 U.S.C. §§ 2201 and 2202, granting 

any district court of the United States, in a case of actual controversy within 

its jurisdiction, the power to declare the rights and other legal relations of 

any interested party seeking such declaration and to grant further necessary or 

proper relief based upon a declaratory judgment or decree.

10. Venue of this action lies in the District of Arizona, pursuant to 

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28 U.S.C. § 1391(b) and 29 U.S.C. § 1132(e)(2), in that acts complained of herein 

occurred within this District. 

THE PARTIES

11. At all times relevant herein, plaintiff, Theresa Kiefer (“Kiefer”), 

was 

a. a United States citizen and resident of Kingman, Mohave 

County, Arizona; and

b. a participant, as defined by ERISA § 3(7), 29 U.S.C. § 

1002(7), in the Lifepoint Hospitals, Inc. Welfare Plan. 

12. Defendant, Lifepoint Hospitals Inc. Welfare Plan (“Plan”), is an 

employee pension benefit plan pursuant to ERISA § 3(2)(A), 29 U.S.C. § 

1002(2)(A). The Plan is a defined pension benefit plan. The plan is named as 

a party defendant pursuant to Rule 19(a), Fed.R.Civ.P.

13. Defendant, Lifepoint Welfare Plan Administration Committee, is, 

pursuant to ERISA §§ 3(21) and 3(16), 29 U.S.C. §§ 1002(21) and 1002(16), the 

named “fiduciary” and “administrator” of the Plan.

FACTS

14. On November 5, 2014, Kiefer was involved in a motor vehicle collision 

in Kingman, Arizona, and suffered injuries requiring medical care. 

15. Some of the medical providers submitted their claims to the Plan 

seeking payment of their fees for services rendered to Kiefer. Subsequently, the 

Plan made payments to Kiefer’s medical providers totaling $31,635.71 and now 

seeks subrogation rights and/or reimbursement for those payments from Kiefer. 

16. In light of the Plan seeking subrogation rights and/or 

reimbursement, Kiefer has attempted to gather relevant information concerning 

the Plan, such as the written instruments that were used to establish the Plan. 

For many months, defendant plan fiduciaries and administrators have failed or 

refused to comply with Kiefer’s written demands for various documents under 

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which the Plan was established, operated, and administered.

17. By letter dated May 19, 2016, Kiefer requested that defendants 

produce, inter alia, copies of instruments under which the plan is established 

or operated pursuant to ERISA § 104(b)(4), 29 U.S.C. § 1024(b)(4). 

18. Defendants failed to timely produce some responsive documents; the 

Plan Document and summary plan description (“SPD”) were furnished on August 17, 

2016. However, some responsive documents have not been produced. Specifically, 

as of this filing, defendants have failed to produce the substantive terms of 

the relevant Component Plans as they are set out in insurance contracts and 

other documents, which form a part of the Plan. Defendants’ stated reason for 

not producing relevant instruments relating to the Component Plans was that “You 

have all the relevant documents.”

19. The Plan seeks to obtain a lien attaching to (or a constructive 

trust imposed upon) money that Kiefer received from the tort-case defendant. 

20. The Plan relies on the following language contained in its SPD for 

its claim:

Subrogation Rights

“The Plan assumes and is subrogated to your legal rights 

to recover any payments the Plan makes for Covered Services, 

when your illness or Injury resulted from the action or fault 

of a third party. The Plan’s subrogation rights include the 

right to recover the reasonable value of prepaid services 

rendered by Network Providers.”

21. The Plan further relies on the following additional language 

contained in its SPD: 

 Priority Right of Reimbursement

“Separate and apart from the Plan’s right of subrogation, 

the Plan shall have first lien and right to reimbursement.”

22. The provisions of the SPD are not enforceable as they cannot create 

terms that are not also authorized by, or reflected in, governing plan documents. 

The Plan’s governing plan document is silent on subrogation and priority right 

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of reimbursement. The SPD provides communication with participants and 

beneficiaries about the plan, but statements in the SPD do not themselves 

constitute the terms of the plan for purposes of ERISA § 502(a)(1)(B), 29 U.S.C. 

§ 1132(a)(1)(B). Cigna Corp. v. Amara, 563 U.S. 421 (2011).

FIRST CLAIM FOR RELIEF

Penalties for Failure to Provide Requested Plan Documents

23. Kiefer incorporates and realleges by reference the foregoing 

paragraphs 1 through 12, inclusive, as if they were fully set forth herein.

24. ERISA § 104(b)(4), required the Plan administrator to honor within 

30 days a written request by Kiefer for a copy of any “instrument under which 

the [employee benefit plan and trust] is established or operated.” Defendant 

did not fully comply with Kiefer’s ERISA document requests.

25. ERISA § 502(c)(1)(B), 29 U.S.C. § 1132(c)(1)(B), in view of 

applicable current federal regulations, provides for penalties of up to $110 a 

day against a plan administrator personally for the administrator’s “failure or 

refusal” to provide any of the plan documents the administrator is required by 

law to provide participants and beneficiaries. 

26. Pursuant to ERISA § 502(c)(1)(B), 29 U.S.C. § 1132(c)(1)(B), this 

Court should assess penalties up to $110 a day against defendants for their 

failure or refusal to timely provide Kiefer with the requested documents and 

instruments under which the Plan is established or operated.

27. As of this filing date, defendants are liable to Kiefer for a civil 

penalty of $110 per day commencing thirty days after May 19, 2016, for their 

refusal to fully comply in a timely manner with ERISA § 104(b)(4), 29 U.S.C. § 

1024(b)(4).

SECOND CLAIM FOR RELIEF

Breach of Fiduciary Duty for Refusal to Disclose Pension Plan Related 

Information

28. Kiefer incorporates and realleges by reference the foregoing 

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paragraphs 1 through 27, inclusive, as if they were fully set forth herein.

29. Defendants refuse and continue to refuse to provide plaintiff’s 

pension plan related information. Kiefer did not timely receive any of the 

documents requested and still has not received all of the documents.

30. Defendants’ failure or refusal to make requested disclosure and 

produce requested documents interfered with Kiefer’s effort to police her Plan 

and to guard against breaches of fiduciary duty.

31. Pursuant to ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), Kiefer asks 

this Court to grant appropriate equitable relief including injunctive relief 

ordering defendants to disclose the information and produce the documents each 

has in its respective possession that is responsive to Kiefer’s request for 

information enumerated in paragraph 18 above.

THIRD CLAIM FOR RELIEF

Declaration of Rights

32. Kiefer incorporates and realleges by reference the foregoing 

paragraphs 1 through 31, inclusive, as if they were fully set forth herein.

33. Kiefer is entitled to have this Court issue a declaration of her 

rights under the Plan, including that the sections of the SPD describing the 

Plan’s subrogation and priority right of reimbursement conflict with the Plan’s 

written instrument by adding terms that do not exist in the Plan documents.

PRAYER FOR RELIEF

WHEREFORE, Kiefer seeks orders and judgments against defendants as 

follows:

A. Pursuant to ERISA § 502(c)(1)(B), 29 U.S.C. § 1132(c)(1)(B), grant 

Kiefer judgment assessing penalties against defendants based upon the maximum 

$110 per day rate for failure to comply within 30 days after Kiefer’s written 

demand of May 19, 2016, for production of documents, including instruments and 

other documents under which the Plan was established or operated.

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B. Grant Kiefer such other and further appropriate equitable relief 

allowable under ERISA § 502(a)(3), as the Court deems just and proper, including 

injunctive orders directing defendants to forthwith disclose the plan

information and produce the documents each has in its respective possession that 

is responsive to Kiefer’s request for information enumerated in paragraph 18 

above.

C. Enter judgment declaring Kiefer’s rights under the Plan, including 

but not limited to a declaration that:

i. the statements contained in the Plan’s SPD regarding 

subrogation and reimbursement do not constitute terms of the 

plan; 

ii. ERISA does not grant the Plan Administrator the power to set 

plan terms indirectly by including them in the SPD; 

iii. the Plan’s SPD adds to or contradicts the terms of the Plan 

document and, therefore, does not constitute a formal Plan 

document; 

iv. the formal Plan document does not create or grant subrogation 

or reimbursement rights for the Plan.

D. Order defendants to pay the reasonable value of Kiefer’s attorney’s 

fees for services performed, expert witness fees, accounting fees, necessary 

expenses of litigation, and costs of this action. 

RESPECTFULLY SUBMITTED this 7th day of December, 2017

 

/s/ J. Scott Wickland 

 Arizona State Bar No. 016333

 John Scott Wickland, Esq.

 LAW OFFICE OF J. SCOTT WICKLAND

 1921 Motor Avenue, Suite A

 Kingman, AZ 86401

 Tele. 928-718-8888

 Fax: 928-718-8889

 wicklandlaw@gmail.com

Attorney for Plaintiff

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