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Lisa Counters, 016436

THE COUNTERS FIRM, P.C.

4809 E. Thistle Landing Drive, Ste. 100

Phoenix, AZ 85044

(602) 490-0030 (Voice)

(888) 683-8397 (Fax)

Lisa@countersfirm.com

Javier A Puig, 022977

Alan M. Schiffman, 004257

SCHIFFMAN PUIG, P.C.

4506 North 12th Street

Phoenix, Arizona 85014

Phone: (602) 266-2667

Fax #: 602-266-0141 

Javier@splaw.net

Alan@splaw.net

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OF ARIZONA

Charles Wanless,

Plaintiff,

vs.

Aetna Life Insurance Company, a foreign insurer; The Boeing Company, a foreing corporation, The Boeing Company Long- Term Disability Plan, The Boeing Company Short-Term Disability Plan, and the Boeing Service Center for Health and 

Insurance Plans,

Defendants.

No. 

COMPLAINT

(Jury Trial Demanded)

For his claim against Defendants, Charles Wanless (“Wanless”) alleges as follows:

JURISDICTION AND VENUE

1. Wanless is a resident of Maricopa County, Arizona. 

2. Defendant Aetna Life Insurance Company (“Aetna”) is a foreign insurer, 

authorized to do business and engaged in business in the State of Arizona. Aetna resides and 

is found within this District within the meaning of the jurisdiction and venue provisions of 

Case 2:15-cv-01650-DGC Document 1 Filed 08/21/15 Page 1 of 11
THE 

COUNTERS 

FIRM, P.C.

4809 E. THISTLE LANDING DRIVE, STE. 100

PHOENIX, AZ 85044 ♦ (602) 490-0030

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the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132 and 28 

U.S.C. § 1391. 

3. The Boeing Company (“Boeing”) is a foreign corporation that is authorized to 

conduct business in Arizona. On information and belief, Boeing’s corporate headquarters 

are in Chicago, Illinois.

4. The Boeing Company Long-Term Disability Plan (“Plan”) is a purported 

ERISA benefit plan established and maintained by Boeing for the benefit of its employees. 

The Plan includes long-term disability benefits (“LTD Plan”). Boeing is the Plan 

Administrator.

5. The Boeing Company Short Term Disability Plan (“STD Plan”) is a payroll 

practice plan that pays short-term disability benefits to employees for a six-month period. 

6. As a result of an Administrative Services Agreement, Aetna handles the dayto-day administration of the STD plan. Aetna makes benefit decisions, processes appeals, 

and pays claims. 

7. The Boeing Service Center for Health and Insurance Plans (“BSC”) is the Plan 

Administrator of the Plan, the STD Plan, and the LTD Plan. 

8. This Court has jurisdiction over the LTD Plan by virtue of the provisions of 

ERISA 29 U.S.C. § 1132, and because Wanless resides in Arizona.

9. This Court has jurisdiction over the STD Plan pursuant to 28 U.S.C. § 1367 

and because Wanless resides in Arizona.

10. This Court has jurisdiction over the subject matter of this action under ERISA, 

29 U.S.C. § 1132(a), (e), 28 U.S.C. § 1331 (federal question); and 28 U.S.C. § 2201-02 

(declaratory judgments). 

11. Defendants reside and are found within this District within the meaning of the 

jurisdiction and venue provisions of the Employee Retirement Income Security Act of 1974 

(“ERISA”), 29 U.S.C. § 1132 and 28 U.S.C. § 1391.

Case 2:15-cv-01650-DGC Document 1 Filed 08/21/15 Page 2 of 11
THE 

COUNTERS 

FIRM, P.C.

4809 E. THISTLE LANDING DRIVE, STE. 100

PHOENIX, AZ 85044 ♦ (602) 490-0030

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GENERAL ALLEGATIONS

12. Boeing, Aetna, and the BSC are all plan fiduciaries as that term is defined by 

ERISA. 

13. Boeing provides certain employees with STD Plan benefits that are paid from 

Boeing’s general assets.

14. Boeing employees are entitled to up to 26 weeks of STD Plan benefits.

15. The STD Plan defines disability as an illness “that prevents you from 

performing the material duties of your own occupation or other appropriate work the 

Company makes available.” 

16. Wanless’ worked for Boeing as a Multi-Media Graphic Designer. The duties 

of his own occupation that he is unable to perform, include, but are not limited to:

• Ability to work a regular, 40-hour work week;

• Designs, tests and produces multi-media applications, systems and products;

• Develops and integrates digital media, special effects, animation and other visual 

images;

• Scopes schedules and estimates project activities;

• Any task which requires steadiness, memory or consistency in job performance; 

17. Wanless suffers from Parkinson disease, with tremors, headaches, anxiety and 

depression. Wanless stopped working on June 24, 2014 due to worsening of his condition, 

including weakness, gait changes, hand tremors, and cognitive impairment. The tremors and 

cognitive impairment directly interfered with his ability to perform the material duties of his 

occupation.

18. Wanless provided proof of his continuing disability through medical records, 

completed Attending Physician Statements and other information requested by Aetna during 

the duration of his claim. 

19. Aetna advised Wanless of its denial of his STD benefits on August 12, 2014. 

Case 2:15-cv-01650-DGC Document 1 Filed 08/21/15 Page 3 of 11
THE 

COUNTERS 

FIRM, P.C.

4809 E. THISTLE LANDING DRIVE, STE. 100

PHOENIX, AZ 85044 ♦ (602) 490-0030

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20. Wanless advised Aetna that he wanted to appeal the denial. Aetna received 

that request on August 14, 2014. Wanless’ request did not state that it was his actual appeal. 

21. Aetna provided Wanless with a Disability Appeal Form.

22. Wanless requested additional time to provide more information on September 

16, 2014. 

23. Aetna requested additional time to perform a “medical review” on October 7, 

2014; however, Aetna did not send Wanless’ file out for medical review until after October 

2, 2014. 

24. Aetna’s October 23, 2014 a denial letter indicated that his Short-Term and 

Long-Term Disability benefits were denied and no further appeals were available to him. 

25. Wanless never applied for long-term disability benefits, nevertheless, Aetna 

denied his LTD Claim. 

26. Throughout the time Wanless was applying for STD benefits, Aetna continued 

to approve FMLA leave from Boeing. 

27. On November 12, 2014, Wanless’ attorney advised Aetna that he represented 

him in connection with his long-term disability benefits and requested a copy of the file.

28. Aetna ignored Wanless’ request. 

29. Wanless’ attorney called Aetna on November 26, 2014, and made a second 

request for the file.

30. Wanless’ attorney forwarded a third request for the file on January 23, 2015.

31. Wanless has satisfied all of the jurisdictional prerequisites to filing this claim 

and any further administrative proceedings would be futile.

COUNT I

BREACH OF CONTRACT

Boeing 

32. Wanless incorporates and realleges all previous allegations. 

33. Boeing had a contractual obligation to pay STD benefits to Wanless.

Case 2:15-cv-01650-DGC Document 1 Filed 08/21/15 Page 4 of 11
THE 

COUNTERS 

FIRM, P.C.

4809 E. THISTLE LANDING DRIVE, STE. 100

PHOENIX, AZ 85044 ♦ (602) 490-0030

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34. Boeing relied on Aetna to perform its contractual obligations under the STD 

benefits. 

35. Boeing unreasonably denied Wanless his STD benefits.

36. Wanless was disabled from his own occupation during as a result of essential 

tremors and cognitive impairment.

37. Boeing ignored Wanless’ complaints of tremors because they were “selfreported” and subjective. 

38. Boeing’s denial was a breach of the contract.

39. This matter arises out of contract; therefore, Wanless may recover his 

attorneys’ fees and costs under A.R.S. § 12-341.01. 

40. Wanless is entitled to prejudgment interest at the highest legal rate on the 

benefits to which he is entitled under A.R.S. § 20-462.

41. Wanless is entitled to a jury trial on this claim.

COUNT II

UNPAID WAGES UNDER A.R.S. § 23-355

(BOEING)

42. Wanless incorporates and realleges all previous allegations. 

43. Boeing is an employer under Arizona law and is subject to the wage laws of 

the State of Arizona. 

44. Wanless was employed by Boeing as that term is defined under Arizona law. 

45. The STD program is a payroll practice, not an ERISA benefit plan.

46. Boeing failed to pay wages due to Wanless in violation of Arizona law. 

47. Boeing intentionally, willfully, and unreasonably denied Wanless’ STD 

payments. 

48. Wanless suffered damages because of Boeing’s failure to pay his STD 

benefits.

49. Wanless is entitled to treble damages for his improperly withheld STD 

payments under A.R.S. § 23-355.

Case 2:15-cv-01650-DGC Document 1 Filed 08/21/15 Page 5 of 11
THE 

COUNTERS 

FIRM, P.C.

4809 E. THISTLE LANDING DRIVE, STE. 100

PHOENIX, AZ 85044 ♦ (602) 490-0030

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50. Wanless is entitled to a jury trial on this claim.

COUNT III

RECOVERY OF INSURANCE AND PLAN BENEFITS

STD Benefits

(Aetna, Boeing, and Boeing Service Center for Health and Insurance Plans )

51. Wanless incorporates and realleges all previous allegations. 

52. This claim is pled in the alternative to Count II, in the event the STD Plan is 

found to be an ERISA plan. 

53. Wanless became disabled in June 2014 and continues to be disabled as a result 

of tremors and cognitive impairment.

54. Despite coverage of Wanless’ disability, Aetna has improperly denied LTD 

benefits to him in breach of the STD Plan.

55. The breach was arbitrary and capricious, an abuse of discretion, not supported 

by substantial evidence and clearly erroneous.

56. Pursuant to the coverage provided in the STD Plan, ERISA (29 U.S.C. 

§ 1132(a)(1)(B)), and applicable federal and state common law, Wanless is entitled to 

recover all benefits due under the terms of the STD Plan, and to enforce his rights under its 

terms. Wanless is further entitled, pursuant to ERISA 29 U.S.C. § 1132(a)(1)(B) and to the 

Federal Declaratory Judgments Act, 28 U.S.C. §§ 2201 and 2202, to clarification in this 

action in this Court of his rights to future benefits under the STD Plan. 

57. Pursuant to 29 U.S.C. § 1132(g), Wanless is entitled to recover his attorneys’ 

fees and costs incurred herein from LINA.

58. Wanless is entitled to prejudgment interest at the highest legal rate on the 

benefits to which he is entitled under A.R.S. § 20-462.

Case 2:15-cv-01650-DGC Document 1 Filed 08/21/15 Page 6 of 11
THE 

COUNTERS 

FIRM, P.C.

4809 E. THISTLE LANDING DRIVE, STE. 100

PHOENIX, AZ 85044 ♦ (602) 490-0030

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COUNT IV

RECOVERY OF INSURANCE AND PLAN BENEFITS

LTD Benefits

(Aetna, Boeing, and Boeing Service Center for Health and Insurance Plans)

59. On information and belief, Boeing funds the LTD Benefits of its Plan through 

the purchase of an insurance policy from Aetna. In exchange for premiums, Aetna pays all 

benefits due under the LTD portion of the Plan. 

60. On information and belief, Boeing pays part of the employee’s premium for 

LTD and the employee pays a part. 

61. For the Plan’s LTD benefits, Aetna is the Claim Administrator and Aetna and 

Boeing are Plan Fiduciaries as defined by ERISA.

62. At all relevant times, Wanless was a Boeing employee, became a covered 

individual under the Plan, and remained continuously employed. 

63. The LTD Plan defines disability as an illness “that prevents you from 

performing the material duties of your own occupation or other appropriate work the 

Company makes available” for the first 24 months. Thereafter, disability is defined by the 

employee’s inability to work at “any reasonable occupation for which you may be fitted by 

training, education, or experience.” 

64. The Policy does not require that a claimant be paid STD Benefits for the sixmonth waiting period before LTD benefits commence. 

65. The LTD Plan requires submission of the claim within 90 days after the 26-

week waiting period.

66. On information and belief, the LTD Plan does not contain language giving the 

BSC the ability to delegate discretion to Aetna, and, therefore, the Plan does not contain a 

valid grant of discretion and the Court 

67. Wanless became disabled in June 25, 2014 due to increased tremors and 

worsening of his cognitive abilities, depression and anxiety. Wanless continues to be 

disabled, and is unable to perform the substantial and material duties of his occupation.

Case 2:15-cv-01650-DGC Document 1 Filed 08/21/15 Page 7 of 11
THE 

COUNTERS 

FIRM, P.C.

4809 E. THISTLE LANDING DRIVE, STE. 100

PHOENIX, AZ 85044 ♦ (602) 490-0030

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68. Aetna never proposed an alternative occupation for Wanless.

69. Wanless never filed an LTD claim. 

70. Nevertheless, Aetna denied his LTD claim on August 12, 2014 and October 

23, 2014. 

71. By failing to consider Wanless’ LTD before he submitted it, Aetna and the 

Plan failed to provide Wanless a full and fair review. 

72. Aetna’s denial of LTD benefits to Wanless was arbitrary, capricious, an abuse 

of discretion, not supported by substantial evidence and was clearly erroneous.

73. Pursuant to the coverage provided in the Plan, to ERISA 29 U.S.C. 

§ 1132(a)(1)(B), and to applicable federal and state common law, Wanless is entitled to 

recover all benefits due under the terms of the LTD Plan, and to enforce his rights under the 

terms of the Plan. 

74. Wanless is further entitled, under the terms of ERISA, 29 U.S.C. 

§ 1132(a)(1)(B) and to the Federal Declaratory Judgments Act, 28 U.S.C. §§ 2201 and 2202, 

to clarification in this action in this Court of his rights to future benefits under the Plan.

75. Pursuant to 29 U.S.C. § 1132(g), Wanless is entitled to recover his attorneys’ 

fees and costs incurred herein from Defendants.

76. Wanless is entitled to prejudgment interest at the highest legal rate on the 

benefits to which he is entitled pursuant to A.R.S. § 20-462.

COUNT IV

BREACH OF FIDUCIARY DUTY

(Aetna)

77. Aetna owes fiduciary duties to participants in the Plan under ERISA, 29 

U.S.C. §§ 1132(a)(2)-(3).

78. Aetna exercised discretionary authority or control over the management or 

administration of the Plan. 

Case 2:15-cv-01650-DGC Document 1 Filed 08/21/15 Page 8 of 11
THE 

COUNTERS 

FIRM, P.C.

4809 E. THISTLE LANDING DRIVE, STE. 100

PHOENIX, AZ 85044 ♦ (602) 490-0030

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79. Aetna admits that it is a fiduciary under the Plan with fiduciary duties, 

including the duty to act prudently and in the best interests of Plan participants and 

beneficiaries.

80. Aetna provided Wanless with a generic “appeal form.” 

81. Aetna distributes these forms to all of the Plan participants at the time a claim 

is denied and a participant indicates intent to appeal. 

82. In providing the generic appeal form, Aetna misleads Plan Participants into 

believing that the form alone is a sufficient appeal, when all the form achieves is a re-review 

of the same information.

83. Aetna provides first level “peer” reviewers with the previous reviewer’s 

opinions, at a minimum destroying the appearance of independence, if not actually 

attempting to influence subsequent reviewers’ opinions. 

84. Aetna refused to consider Wanless’ LTD claim, simply because his STD claim 

was not approved. 

85. Aetna arbitrarily refused to permit Wanless to file an LTD claim for 

consideration. 

86. On information and belief, Aetna has a practice of not approving STD benefits 

to avoid payment of LTD benefits. 

87. Aetna’s failure to provide all relevant information, its intentional withholding 

of relevant information, its numerous procedural irregularities, its financial conflict, and its 

failure to act in Plan participant’s best interests are all breaches of its fiduciary duty under 

ERISA and the terms of the Plan.

88. Aetna failed to discharge its duties with the care, skill, prudence, and diligence 

that a prudent man acting in like capacity and familiar with such matters would use under 

similar circumstances.

89. ERISA “does not elsewhere adequately remedy” the injuries caused to 

Wanless by Defendant’s breach of fiduciary duty violations. 

Case 2:15-cv-01650-DGC Document 1 Filed 08/21/15 Page 9 of 11
THE 

COUNTERS 

FIRM, P.C.

4809 E. THISTLE LANDING DRIVE, STE. 100

PHOENIX, AZ 85044 ♦ (602) 490-0030

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90. Aetna should be held liable for benefits it gained through unjust enrichment 

and for harm caused as a result of its breach to Wanless.

91. Aetna must return any benefits resulting from its breach to Wanless. 

92. Aetna’s breaches injured the Plan, jeopardized the Plan or put at risk Plan 

assets.

93. The Plan as a whole incurred an injury as a result of the Aetna’s breaches of its 

fiduciary duties. 

94. Aetna is liable for loss of value to the Plan or for any profits that the Plan 

would have accrued in the absence of the breach.

95. Wanless is entitled to pursue any equitable remedies that will restore him to 

the position he would have been in, but for Aetna’s breach of its duties under ERISA and the 

Plan. 

96. Aetna gains a benefit by facility to properly advise Plan participants about 

what is required to appeal its decision. 

97. Because Aetna breached its fiduciary duties, Wanless was actually harmed. 

98. Wanless relied on the Plan to his detriment, believing that he was entitled to 

STD and LTD benefits pursuant to the provisions of the Plan. 

99. Aetna was unjustly enriched as a result of its breach of fiduciary duty 

violations, because it wrongfully withheld benefits for its own profit. 

100. If Wanless is not awarded a remedy beyond an award of benefits, Aetna If 

Wanless is not awarded a remedy beyond an award of benefits, Aetna has no incentive to 

stop denying benefits under the Plan as a result of its structural conflict of interests. 

101. Wanless seeks injunctive relief, which would benefit not only the Plan’s 

individual participants, but also Wanless. 

102. As a direct and proximate result of the breaches of fiduciary duty, Wanless 

suffered actual financial harm and incurred financial expense

Case 2:15-cv-01650-DGC Document 1 Filed 08/21/15 Page 10 of 11
THE 

COUNTERS 

FIRM, P.C.

4809 E. THISTLE LANDING DRIVE, STE. 100

PHOENIX, AZ 85044 ♦ (602) 490-0030

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WHEREFORE, Wanless prays for entry of judgment against Defendants as 

follows:

A. For a finding that the STD Plan is a salary continuation plan;

B. For treble damages of the STD benefits under A.R.S. 23-355

C. All STD benefits owed For all past and future benefits due Wanless under 

the terms of the Plan;

D. For an order requiring Aetna to open and process a LTD claim for Wanless;

E. For and order clarifying and determining Wanless’ rights to future benefits 

under the terms of the Plan;

F. An injunction against the Plan from misinforming Plan participants of 

ERISA regulations and requiring compliance with ERISA regulations and 

Plan terms; 

G. An equitable surcharge, disgorgement, or other appropriate equitable 

remedy(ies) for Aetna’s breach of fiduciary duty violations and resulting 

unjust enrichment. 

H. For equitable relief under 29 U.S.C. § 1132(a)(3);

I. For an award of Wanless’ attorneys’ fees and costs incurred herein;

J. For an award of prejudgment interest on benefits and damages at the highest 

legal rate until paid; and

K. For such other and further relief as the Court deems just and reasonable.

Dated this 21st day of August 2015.

THE COUNTERS FIRM, P.C.

SCHIFFMAN PUIG, P.C.

By: /s/ Lisa J. Counters

Lisa J. Counters

Case 2:15-cv-01650-DGC Document 1 Filed 08/21/15 Page 11 of 11