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Lisa Counters, SBN 016436

4809 E. Thistle Landing Drive, Suite 100

Phoenix, Arizona 85044

Lisa@countersfirm.com

Voice: (602) 490-0030

Fax: (888) 683-8397

Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OF ARIZONA

Kathleen Grant, 

Plaintiff,

vs.

Life Insurance Company of North 

America, a foreign insurer, Banner Health, 

Inc., Long Term Disability Plan of Banner Health, Inc., Banner Plan Administration, 

and Banner Health & Welfare Committee,

Defendants.

Case No. : 

 COMPLAINT

For her claim against Defendants, Kathleen Grant (“Grant”) alleges as follows:

PARTIES

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

2. Defendant Banner Health, Inc. (“Banner”) is an Arizona corporation. Banner 

is the Plan Sponsor, Plan Administrator of the Plan. 

3. Defendant Banner Long-Term Disability Plan (“Plan”) is a purported ERISA 

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

4. Banner Plan Administration (“BPA”) is a claim administrator appointed by 

Defendant Banner Health & Welfare Committee (“BHWC”) to administer and determine 

benefit claims and is a plan administrator. 

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5. Defendant Life Insurance Company of North America (“LINA”) is an 

insurance company with its principal place of business in Pennsylvania. LINA is authorized 

to do business in Maricopa County, Arizona. On information and belief, LINA assumed 

responsibility as the Plan’s claim administrator at some time in 2012. 

6. Defendants are either “named fiduciaries” pursuant to 29 U.S.C. § 1133(2); 

“deemed fiduciaries” pursuant to 29 U.S.C. § 1002(21)(A); or designated fiduciaries 

pursuant to 29 U.S.C. § 1105(c)(1)(B).

JURISDICTION AND VENUE

7. This Court has jurisdiction over Defendants by virtue of the provisions of 

ERISA 29 U.S.C. § 1132, and because the Plan, LINA, BPA, and BHWC have caused 

events to occur in Arizona out of which Grant’s claims arise.

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

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

9. 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.

FACTUAL BACKGROUND

10. Banner provided certain employees with LTD insurance through the Plan.

11. At all relevant times, Grant was a Banner employee who was entitled to 

receive benefits under the Plan.

12. Grant suffers from cognitive deficiencies and post-concussion syndrome 

sustained as the result of a motor vehicle accident on January 8, 1999.

13. In 1999, Grant qualified for LTD benefits under the Plan (f/k/a the Samaritan 

Long Term Disability Plan).

14. In 1999 the terms of the Plan would pay LTD benefits if, “by means of 

sickness or injury and directly and independently of all other causes, [Grant] is disabled so 

that she is completely prevented from engaging in any occupation or employment for which 

she is fit by reason of experience, training or education.”

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15. Prior to becoming disabled, Grant was a transplant nurse for Banner.

16. Banner paid LTD benefits to Grant from 1999 to November 13, 2008.

17. In January of 2009, the Plan became known as the Banner Health Long-Term 

Disability (LTD) Plan.

18. The terms of the Plan in 2009, when Grant started receiving benefits paid 

benefits if Grant has been disabled for 182 days and if she suffers from an injury or sickness 

of permanent or long continued duration, which, directly and independently of all other 

causes, disables her so that she is completely prevented from engaging in any occupation or 

employment for which she is fit by reason of experience, training, or education.

19. Grant exhausted her administrative remedies and filed suit in Arizona District 

Court, Case no. 2:10-cv-01933 against Banner Health Long-Term Disability Plan, BHWC, 

and BPA to recover unpaid plan benefits. The parties settled the dispute out of court, and the 

case was dismissed in May 2011.

20. The settlement included returning Grant to an active claim and she began to 

receive benefits again. 

21. As part of the transition from self-funded to fully-insured, Banner purchased a 

Self-Funded Disability Terminal Liability Policy (“Terminal Policy”). 

22. The Terminal Policy purports to cover any employee who is disabled as of the 

date of the Terminal Policy under the terms of the 2012 Summary Plan Description (“2012 

SPD”). 

23. On information and belief, in 2012, Banner ceased self-funding its LTD 

benefits and the Plan became fully-insured by Defendant LINA. 

24. For employees, including Grant that were already receiving benefits under the 

Plan, LINA offers a Claim Reserve Buy-out Program (“RBO Program”).

25. LINA advertises that the RBO program provides benefits for employers, 

including the ability to pay one lump sum to buyout the existing risk, tax advantages, and the 

ability of the employer to avoid employee benefit claim lawsuits. 

26.

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27. On September, 12, 2012, LINA provided notice to Grant that LINA was 

assuming responsibility for administering and processing Grant’s LTD benefits.

28. LINA then paid benefits to Grant through August 22, 2013, at which time it

terminated Grant’s LTD benefits on grounds that she was no longer disabled, based solely on 

July 2013 neuropsychological testing that was invalid and could not be used to determine 

whether Grant was disabled.

29. On February 27, 2014, Banner provided a summary plan description (“SPD”) 

for the Banner LTD Plan and a Group Long Term Disability Certificate for the 2012 Plan to 

Grant in response to her detailed request for copies of all plan documents. 

30. Banner did not disclose a complete plan document for the Samaritan Plan or 

the Banner LTD Plan and did not provide the “2012 SPD” which is allegedly the plan under 

which Grant’s disability benefits were to be paid. 

31. Grant appealed LINA’s denial. 

32. LINA issued its final denial of Grant’s claim on January 8, 2015. 

33. In the denial, LINA denied Grant’s claim based on a definition allegedly 

contained in “Policy RBO-030036,” which is, on information and belief, the Terminal 

Policy. 

34. The denial continued to rely on invalid neuropsychological testing.

35. Grant continues to be totally disabled, regardless of the plan language under 

which her disability is determined. 

36. Grant has satisfied all of the jurisdictional prerequisites to filing a claim in 

federal court.

COUNT I

RECOVERY OF INSURANCE AND PLAN BENEFITS

37. Grant incorporates and re-alleges all previous allegations.

38. Grant’s benefits are purportedly defined by the Terminal Plan.

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39. The Terminal Plan does not contain a delegation of discretion to Banner or 

LINA, the decision-maker. 

40. Grant became disabled in 1999, she continues to be disabled, and is unable to 

perform the duties of her occupation or any gainful employment. 

41. On information and belief, LINA, BPA, BHWC operate the Plan under a 

conflict of interest. 

42. Despite the coverage of Grant’s long-term disability, Defendants have 

improperly denied LTD benefits to Grant. This breach was arbitrary, capricious, an abuse of 

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

43. Pursuant to the coverage provided to Grant, to ERISA 29 U.S.C. 

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

all benefits due under the Terminal Plan, and to enforce her rights under its terms. Grant is 

further entitled, pursuant to ERISA 29 U.S.C. § 1132(a)(1)(B) to clarification in this action 

in this Court of her rights to future benefits under the Terminal Plan.

44. Pursuant to 29 U.S.C. § 1132(g), Grant is entitled to recover her attorneys’ 

fees and costs incurred herein from Defendants. 

45. Grant is entitled to prejudgment interest at the highest legal rate on the benefits 

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

COUNT II

FAILURE TO PRODUCE PLAN DOCUMENTS

(AGAINST BANNER & BPA)

46. All previous allegations are incorporated and re-alleged in this count.

47. Section 104(b)(4) of ERISA, 29 U.S.C. § 1024(b)(4) requires Plan 

Administrators to provide, upon request of any participant or beneficiary, a copy of the latest 

updated plan description in addition to the latest annual report, terminal report, bargaining 

agreement, trust agreement, contract, or other instruments under which the plan is 

established or operated.

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48. Failure of the Plan Administrator to provide plan documents within 30 days 

under 29 U.S.C. 1132(c)(1)(B) exposes the Plan Administrator to a penalty of up to $110 per 

day from the date of the failure to provide documents.

49. Banner and BPA are Plan Administrators. 

50. On January 28, 2014, Grant requested copies of all documents, records, and 

other information relating to the plan.

51. Banner did not provide any plan documents for the Samaritan Plan.

52. The language of the SPD for the Banner LTD Plan disclosed by Banner 

specifically states that “[it] is not the insurance contract. It does not waive or alter any of the 

terms of the policy. If questions arise, the Policy will govern. [Participants and beneficiaries] 

may examine the Policy at the office of the Policyholder or the Administrator.”

53. Banner did not disclose the policy instrument referred to in the SPD for the 

Banner LTD Plan.

54. Banner attached an exhibit page to the 2012 Plan document it disclosed stating 

“Exhibit A is 2012 SPD,” but Banner did not provide the SPD.

55. Banner therefore failed to disclose the Samaritan Plan’s policy document, the 

Banner LTD Plan policy document, and the 2012 Plan’s SPD the in violation of 29 U.S.C. 

1132(c)(1)(B).

WHEREFORE, Grant prays for entry of judgment against Defendants as follows:

A. For all past and future benefits due to Grant;

B. For general and special damages arising from LINA’s violation of ERISA 

29 U.S.C. § 1104(a)(1);

C. For judgment awarding Grant $110 per day for each day beyond 30 that 

Banner failed to provide Grant with complete copies of the plan document; 

D. A declaration of what plan document or plan documents govern Grant’s 

disability;

E. Clarifying and determining Grant’s rights to future benefits under the terms 

of the Plan that apply to Grant;

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F. For an award of Grant’s attorneys’ fees and costs incurred herein;

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

legal rate until paid; and

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

Dated: December 29, 2015.

THE COUNTERS FIRM, P.C.

By: /s Lisa J. Counters

Lisa Counters

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