UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KEVIN M. MCCANN, M.D.,

 Plaintiff,

 v.

UNUM PROVIDENT, et al.,

 Defendants.

 CIVIL ACTION NO. 11-3241 (MLC)

 MEMORANDUM OPINION

COOPER, District Judge

I. INTRODUCTION

The plaintiff, Kevin M. McCann, M.D., brings this action 

against, among others, the defendant Provident Life and Accident 

Insurance Company, sued here as “Unum Provident” (“Provident”). 

(See generally dkt. entry no. 1, Compl., Count I.) McCann alleges 

that he purchased a supplemental long-term disability (“LTD”) 

insurance policy (“the Policy”) from Provident in 1991. He also 

alleges that Provident, in 2008, determined that he was “totally 

disabled” under the terms of the Policy and eligible for monthly 

benefit payments, and began issuing such payments. (See id. at 

¶¶ 22, 31.) But McCann also alleges that Provident thereafter 

improperly determined that he was no longer totally disabled, and 

terminated his benefit payments. (See id. at ¶¶ 34-35, 37.) He

thus raises a breach of contract claim against Provident, seeking

payment for his allegedly past-due benefits and reinstatement of 

monthly benefit payments. (See id. at ¶ 49.)

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Provident now moves for summary judgment pursuant to Federal 

Rule of Civil Procedure (“Rule”) 56 and Local Civil Rule (“Local 

Rule”) 56.1(a), seeking a declaration that Count I of the Complaint 

is governed by the Employee Retirement Income Security Act of 1974, 

29 U.S.C. § 1001, et seq. (“ERISA”). (See dkt. entry no. 32, 

Provident Mot.) Provident argues in support of the Provident 

Motion that: (1) the Policy is part of the Residents’ Supplemental 

Disability Insurance Plan (“RSDP”); (2) the RSDP is an employee 

welfare benefit plan; and (3) Count I of the Complaint is governed 

by ERISA. (See dkt. entry no. 32-4, Provident Br. at 6-24.) 

McCann opposes the Provident Motion, and cross-moves for 

summary judgment, seeking a declaration that ERISA is inapplicable. 

(See generally dkt. entry no. 36, McCann Opp’n Br; dkt. entry no. 

33, McCann Cross Mot.) He argues that the Policy is not part of 

the RSDP and is not separately an employee welfare benefit plan. 

(See McCann Opp’n Br. at 8-15; dkt. entry no. 33-1, McCann Br. at 

8-13.) He alternatively argues that the ERISA Safe Harbor 

Provision promulgated by the United States Department of Labor, 29 

C.F.R. § 2510.3-1(j), removes the Policy -- and thus removes Count 

I of the Complaint -- from the sphere of ERISA’s coverage. (See

McCann Opp’n Br. at 15-17; McCann Br. at 14-18.)

The Court has considered all of the arguments raised by 

Provident and McCann, both in their respective papers and at oral 

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argument. (See dkt. entry no. 51, Minute Entry for 12-14-12 Oral 

Arg.) The Court now concludes, for the reasons set forth below, 

that Count I of the Complaint is governed by ERISA.

II. STANDARD OF REVIEW

The Court will grant a motion for summary judgment only if the 

movant demonstrates both that: (1) no genuine disputes of material 

fact exist; and (2) the movant is entitled to judgment as a matter 

of law. See Fed.R.Civ.P. 56(a); Koenig v. Automatic Data 

Processing, 156 Fed.Appx. 461, 466 (3d Cir. 2005). 

The movant carries the initial burden of demonstrating an 

absence of genuinely disputed material facts. See Celotex Corp. v. 

Catrett, 477 U.S. 317, 330 (1986). Material facts are those that 

“could affect the outcome” of the proceeding, and “a dispute about 

a material fact is ‘genuine’ if the evidence is sufficient to 

permit a reasonable jury to return a verdict for the non-moving 

party.” Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)

(citation omitted). The Court, when determining whether the movant 

has carried this burden, must view the evidence in the light most 

favorable to the non-movant and draw all reasonable inferences in 

the non-movant’s favor. Scott v. Harris, 550 U.S. 372, 380 (2007); 

Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). 

If the movant demonstrates an absence of genuinely disputed 

material facts, then the burden shifts to the non-movant to 

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demonstrate the existence of at least one genuine issue for trial. 

See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 

U.S. 574, 586–87 (1986); Williams v. Bor. of W. Chester, Pa., 891 

F.2d 458, 460–61 (3d Cir. 1989). “Where the record taken as a 

whole could not lead a rational trier of fact to find for the 

non-moving party, there is no ‘genuine issue for trial.’” 

Matsushita Elec. Indus. Co., 475 U.S. at 587 (citation omitted). 

The non-movant cannot, when demonstrating the existence of issues 

for trial, rest upon argument; the non-movant must show that such 

issues exist by referring to the record. See Fed.R.Civ.P. 

56(c)(1); Matsushita Elec. Indus. Co., 475 U.S. at 586.

If the non-movant fails to demonstrate that at least one 

genuine issue exists for trial, then the Court must determine 

whether the movant is entitled to judgment as a matter of law. A

movant is entitled to judgment as a matter of law if, at trial, no 

reasonable jury could find for the non-moving party. See Celotex 

Corp., 477 U.S. at 325; In re Bressman, 327 F.3d 229, 238 (3d Cir. 

2003); see also Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 

(5th Cir. 2002) (“To obtain summary judgment, ‘if the movant bears 

the burden of proof on an issue . . . because . . . he is asserting 

an affirmative defense, he must establish beyond peradventure all

of the essential elements of the . . . defense to warrant judgment 

in his favor.’”).

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It appears that Provident bears the burden of proving that the 

Policy is part of an ERISA-governed employer welfare benefit plan, 

subject to ERISA governance. See Joy Global, Inc. v. Wis. Dep’t of 

Workforce Dev. (In re Joy Global, Inc.), 346 B.R. 659, 667-68 (D. 

Del. 2006); see also Kanne v. Conn. Gen. Life Ins. Co., 867 F.2d 

489, 492 n.4 (9th Cir. 1988). McCann, by contrast, bears the 

burden of proving that the Safe Harbor Provision removes the Policy 

from the sphere of ERISA’s coverage. See Pfeil v. State St. Bank & 

Trust Co., 671 F.3d 585, 598-99 (6th Cir.), cert. denied, 133 S.Ct. 

758 (2012); Morris v. Paul Revere Ins. Grp., 986 F.Supp. 872, 878-

89 (D.N.J. 1997).

III. LOCAL RULE 56.1(a)

Local Rule 56.1(a), a companion to Rule 56, (1) requires

parties to present argument by reference to the materials in the 

record, and (2) where a non-movant fails to present an argument by 

reference to the record, allows the Court to deem the movant’s 

factual assertions undisputed. See Fed.R.Civ.P. 56(c), (e)(2); 

Carita v. Mon Cheri Bridals, LLC, No. 10-2517, 2012 WL 3638697, at 

*1-2 (D.N.J. Aug. 22, 2012). In pertinent part, Local Rule 56.1(a) 

provides that:

On motions for summary judgment, the movant shall 

furnish a statement which sets forth material facts as 

to which there does not exist a genuine issue . . . . 

The opponent of summary judgment shall furnish, with its 

opposition papers, a responsive statement of material 

facts, addressing each paragraph of the movant’s

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statement, indicating agreement or disagreement and, if 

not agreed, stating each material fact in dispute and 

citing to the affidavits and other documents submitted 

in connection with the motion; any material fact not 

disputed shall be deemed undisputed for purposes of the 

summary judgment motion.

L.Civ.R. 56.1(a) (emphasis added). 

A movant’s statement of facts and a non-movant’s related 

response serve a vital purpose, in that they assist the Court in 

identifying whether material facts are truly in dispute. See Am. 

Plaza, LLC v. Marbo Cross Shop, LLC, No. 08-5963, 2010 WL 455349, 

at *2 (D.N.J. Feb. 3, 2010). Local Rule 56.1(a) thus puts the onus 

on the parties, rather than the Court, to find evidence of record 

supporting their respective arguments. See Baker v. Hartford Life 

Ins. Co., No. 08-6382, 2010 WL 2179150, at *2 n.1 (D.N.J. May 28, 

2010) (“It is not the Court’s responsibility to comb the record on 

behalf of Plaintiff’s counsel.”), aff’d, 440 Fed.Appx. 66 (3d Cir. 

2011); N.J. Auto. Ins. Plan v. Sciarra, 103 F.Supp.2d 388, 408 

(D.N.J. 1998) (“[I]t is the responsibility of each party to support 

its own contentions with a proper basis in the record of the 

case.”). “Given the vital purpose that such rules serve, litigants 

ignore them at their peril.” Cabán Hernández v. Philip Morris USA, 

Inc., 486 F.3d 1, 7 (1st Cir. 2007). 

Provident, pursuant to Local Rule 56.1(a), has filed a 

statement of facts in support of its motion. (See generally dkt. 

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entry no. 32-5, Provident SOF.) McCann has filed a response,

indicating disagreement with the statements in paragraphs 2-4, 11, 

13, 18, 24, 29, 34, 36, 40-42, 55-56, 58-59, and 68-69 (“Paragraphs 

at Issue”) of the Provident SOF. (See dkt. entry no. 36-1, McCann 

Response to Provident SOF). Provident now argues that the Response 

to the Provident SOF is insufficient, insofar as McCann fails to 

cite affidavits or other documents of record to support it. (See

dkt. entry no. 38, Provident Reply Br. at 1-3, 9.) Provident thus 

urges the Court to deem the facts recited in the Paragraphs at 

Issue to be undisputed. (See id.) 

The Court has carefully examined both the Provident SOF and 

McCann’s Response to the Provident SOF, and now concludes that the 

facts recited in the Paragraphs at Issue are deemed admitted. 

McCann has not demonstrated the existence of genuine issues of 

material fact by reference to evidence of record. Instead, he 

argues that the Court should not accept Provident’s recitations of 

fact based on the credibility of the underlying evidence. 

Such arguments are unavailing. McCann’s failure to reference 

evidence of record demonstrates that there is no reason to 

disbelieve the statements of fact contained in the Paragraphs at 

Issue. See Healy v. N.Y. Life Ins. Co., 860 F.2d 1209, 1215-16 (3d 

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Cir. 1988); Sciarra, 103 F.Supp.2d at 408.1 The Court will thus 

deem the facts recited in the Paragraphs at Issue to be undisputed, 

and incorporate them into the following findings of fact.

IV. FINDINGS OF FACT

A. McCann’s Relationship to Henry Ford Hospital

McCann was hired by Henry Ford Hospital (“the Hospital”) to 

serve in a two-year fellowship program, the Hospital’s Graduate 

Trainee Physician Program (“the Program”). He worked in the 

Hospital’s neuro-radiology department from July 1, 1989 until his 

fellowship concluded on June 30, 1991. (See Provident SOF at ¶ 5; 

 1 McCann argues that the Court should nonetheless disregard 

certain facts recited in the Paragraphs at Issue: (1) because he 

cannot remember a certain conversation; (2) because Provident 

relied on affidavits, rather than other forms of documentary 

evidence; and (3) based on his assertion that certain affiants lack 

knowledge of the materials in their affidavits, in violation of 

Local Rule 7.2(a). (See McCann Response to Provident SOF at 

Paragraphs at Issue.) Each argument lacks merit. First, McCann’s

inability to recall certain conversations does not create a dispute 

as to material facts. Second, Provident properly relied on sworn 

affidavits when crafting the Provident SOF. See Fed.R.Civ.P. 

56(c); L.Civ.R. 56.1(a). Third, and in stark contrast to McCann’s 

assertions, it appears that each affiant claimed personal knowledge 

of the matters discussed in his affidavit. (See, e.g., dkt. entry 

no. 32-3, Plourde Aff. at ¶ 2.)

The Court is mindful that McCann both responded to the 

Provident SOF and filed a separate and distinct SOF in support of 

the Cross Motion. McCann could have disputed the Provident SOF, 

and demonstrated the existence of disputed material facts, in 

either document. See G.S. v. Cranbury Twp. Bd. of Educ., 450 

Fed.Appx. 197, 203 n.4 (3d Cir. 2011). But it appears that McCann 

did not refute the facts recited in the Paragraphs at Issue in 

either document. (Compare Provident SOF at Paragraphs at Issue, 

with McCann Response to Provident SOF at Paragraphs at Issue, and

dkt. entry no. 33-2, McCann SOF.)

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McCann Response to Provident SOF at ¶ 5; McCann SOF at ¶ 2; dkt. 

entry no. 35-1, Provident Response to McCann SOF at ¶ 2.) 

B. The Employment Benefits Offered by the Hospital

The Hospital agreed to provide McCann a package of employment 

benefits that included “medical, dental, optical, disability, life 

insurance, and other benefits in accordance with the [Program]

benefit package”. (See Provident SOF at ¶¶ 7-9; McCann Response to 

Provident SOF at ¶¶ 7-9; dkt. entry no. 32-3, Del Mauro Cert., Ex. 

I, McCann Response to Interrogatories at ¶ 3; Del Mauro Cert., Ex. 

J, First Program Agreement; Del Mauro Cert., Ex. J, Third Program 

Agreement.) McCann acknowledges that the Hospital provided some of 

those benefits, but denies that the Hospital offered or otherwise 

informed him of the opportunity to purchase disability insurance. 

(See McCann Response to Provident SOF at ¶¶ 8-9, 48.) 

It is, however, undisputed that the Hospital provided all 

eligible employees with an opportunity to secure a “Base Plan” of 

non-contributory LTD benefits. (See Provident SOF at ¶¶ 10-11, 21; 

McCann Response to Provident SOF at ¶¶ 10-11.)2 It is also 

undisputed that the Hospital determined which employees were 

eligible for coverage under the Base Plan and set the maximum 

 2 McCann disputes that he received LTD benefits under the Base 

Plan. (See McCann Response to Provident SOF at ¶¶ 10-11.) It is, 

however, sufficient to note that he became eligible for benefits 

under the Base Plan on or about January 1, 1990. (See Plourde Aff. 

at ¶¶ 6-7.) 

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monthly benefit available thereunder. (See Provident SOF at ¶¶ 24, 

29.) The Base Plan, between 1972 and 1998, was underwritten by 

Provident’s predecessor, Unum Life Insurance Company of America 

(“Unum”). (See Provident SOF at ¶¶ 14, 16, 19, 24-25.)3 

The Hospital also provided the opportunity to purchase 

supplemental LTD insurance to certain employees. Staff doctors, 

for example, could purchase supplemental LTD insurance from 

Provident under the Staff Doctors’ Supplemental Disability 

Insurance Plan (“SSDP”). (See Provident SOF at ¶¶ 31-32, 35-36; 

McCann Response to Provident SOF at ¶¶ 31-32; Plourde Aff., Ex. 4, 

SSDP.) Provident assigned SSDP polices to a common risk group, and 

staff doctors participating in the SSDP accepted billing on their 

respective policies. (See Provident SOF at ¶¶ 33-34; McCann 

Response to Provident SOF at ¶¶ 33-34.) It is undisputed that the 

Hospital determined which employees could participate in the SSDP. 

(See Provident SOF at ¶ 34.)

The Hospital provided a similar opportunity to residents 

participating in the Program (“Residents”). Residents could 

purchase supplemental LTD insurance from Provident under the RSDP, 

 3 Unum and Provident merged in 1999. See Harding v. Provident 

Life & Acc. Ins. Co., 809 F.Supp.2d 403, 406 n.2 (W.D. Pa. 2011); 

Simon v. UnumProvident Corp., No. 99-6638, 2002 WL 1060832, at *1 

(E.D. Pa. May 23, 2002). It appears that the entity sued here as 

“Unum Provident” and referred to in this Memorandum Opinion as 

“Provident” thereafter underwrote the Base Plan. (See Provident 

SOF at ¶ 23.)

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which was exclusively available to Residents. (See Plourde Aff. at 

¶ 12.) The RSDP was funded through the purchase of individual 

policies of LTD insurance by Residents, who were eligible to 

participate by virtue of their employment by the Hospital. (See

dkt. entry no. 32-1, Chavez Aff. at ¶ 5.) Provident assigned RSDP 

polices to a common risk group, Risk Group No. 62252, and Residents 

participating in the RSDP accepted billing on their respective 

policies. (See Provident SOF at ¶¶ 33-34; McCann Response to 

Provident SOF at ¶¶ 33-34; Plourde Aff. at ¶¶ 12-14.) Seven 

Residents purchased RSDP policies while McCann was employed at the 

Hospital, and twenty-five Residents participated in the RSDP 

between March 1, 1991 and October 1, 1993. (See Provident SOF at 

¶ 40.)

Residents who purchased policies under the RSDP enjoyed 

premium discounts by virtue of their association with both the RSDP 

and the Hospital. (See Plourde Aff. at ¶ 14; Chavez Aff. at ¶ 5 

(“The discount would not have been available to the participants 

but for their employment by and with [the Hospital].”).) All RSDP 

policy holders received a “Risk Discount”, i.e., a fifteen percent 

premium discount based solely on their employment by the Hospital. 

(See dkt. entry no. 38-1, Supp. Plourde Aff. at ¶ 8; see also dkt. 

entry no. 33-4, Attwood Cert., Ex. C, Provident’s Answers to 

Interrogatories at ¶¶ 2-3.) RSDP policyholders also enjoyed 

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further discounts, such as those offered based on a policyholder’s 

chosen method of payment. (See Supp. Plourde Aff. at ¶ 8; see also

Del Mauro Cert., Ex. K, 5-9-91 Letter from Lucasse, Ellis, Inc. to 

McCann at 1.) 

C. McCann’s Interactions with Lucasse, Ellis, Inc.

It is undisputed that insurance brokerage firm Lucasse, Ellis, 

Inc. (“LEI”) was the Hospital’s broker of record for policies 

issued under the Base Plan, SSDP, and RSDP. (See Provident SOF at 

¶ 58; see also Plourde Aff. at ¶ 19.) LEI sent McCann materials 

relating to the RSDP in 1991, before the end of his employment by 

the Hospital. (See McCann SOF at ¶¶ 5-6; Provident Response to 

McCann SOF at ¶¶ 5-6.) Those materials directly, repeatedly, and 

unequivocally refer to the RSDP. The words “Residents’ 

Supplemental Disability Insurance Plan” appear at the top of the 

first page, on the first line, centered on the page. (Del Mauro 

Cert., Ex. H, LEI Marketing Materials at 1.) Further, the LEI 

Marketing Materials provide that: 

The Provident Life and Accident Insurance Company is the 

industry’s leader in individual disability coverage for 

physicians. They were chosen by the Henry Ford Medical 

Group to provide supplemental disability insurance to 

Ford Physicians, and will underwrite the Resident[s’] 

Plan.

(Id.) LEI, on the last page of the LEI Marketing Materials, 

invites questions regarding comparisons of the benefits available 

under the RSDP with benefits offered by competitors. (Id. at 3.) 

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It is undisputed that McCann thereafter spoke with LEI 

brokerage agent David Manes, and disclosed to Manes that he earlier 

had purchased an individual LTD policy (“the Northwestern Policy”). 

(See McCann SOF at ¶¶ 6, 32-33.) It is also undisputed that McCann 

expressed to Manes that he was interested in obtaining a new 

individual LTD policy to replace the Northwestern Policy. (See id.

at ¶ 33 (citing McCann Cert. at ¶ 4).)

Manes thereafter wrote to McCann, noting allegedly significant

differences between the Northwestern Policy and the policy offered 

by LEI and Provident, i.e., the Policy. (See McCann Cert., Ex. D, 

Handwritten Letter at Page No. P 000000091 (“Handwritten Letter”).) 

The Handwritten Letter states that “[i]n every case . . . [the 

Northwestern Policy] is providing a lesser benefit” than that 

provided by the Policy. (Id.) 

D. The Policy

McCann applied to Provident for insurance coverage on May 8, 

1991, while still employed by the Hospital. (See Plourde Aff., Ex. 

5, Application; Provident SOF at ¶ 48; McCann Response to Provident 

SOF at ¶ 48.) The Application is a generic form application for 

disability insurance; it does not refer to any specific plan or 

employer. (See Application.) As completed and, by signature, 

verified by McCann, the Application identifies McCann’s “employer”

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as “Henry Ford Hospital”, his “occupation” as “M.D.”, and his 

“exact duties” as “fellow in neuro radiology”. (Id. at 1.) 

McCann elected, through a checkbox on the Application, to pay 

the Policy premiums in annual (rather than semi-annual, quarterly, 

or monthly) installments. (See id. at 2.) Manes wrote to McCann 

on May 9, 1991, and confirmed that “the annual premium [was] 

discounted by 23%, while all other modes [would] receive a 19% 

discount.” (5-9-91 Letter from LEI to McCann at 1.) 

It is undisputed that Provident accepted the Application, 

added McCann to the Risk Group No. 62252, and issued the Policy to 

McCann. (See Provident SOF at ¶ 55.)4 The Policy took effect on 

July 1, 1991, one day after McCann left the Hospital’s employ, and 

provided for a monthly benefit based on his post-fellowship income. 

(See Plourde Aff., Ex. 5, Policy; McCann SOF at ¶ 20; Provident 

Response to McCann SOF at ¶ 20.) McCann asserts that he set both 

the effective date and monthly benefit amount based on Manes’s

recommendations. (See McCann SOF at ¶ 21; McCann Cert. at ¶ 7.)

 4 McCann, by way of response to the Provident SOF, states

“that the policy was [not] added to an existing risk group or 

related to the ‘Residents’ Supplemental’ plan ‘pursuant to Dr. 

McCann’s application.’” (Response to Provident SOF at ¶ 55.) But 

he fails to support this contention by reference to evidence of 

record. The Court, for the reasons detailed in Section III of this 

Memorandum Opinion, accepts as undisputed that Provident treated 

the Policy as issued under the RSDP and added McCann to Risk Group 

No. 62252. (See Provident SOF at ¶ 55.) See Healy, 860 F.2d at 

1215-16 (no genuine issue of material fact arises if the non-movant 

fails to introduce counter-affidavits or other evidence to support 

his position). 

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The Policy does not refer to the RSDP or the Hospital, nor 

does it refer to Risk Group No. 62252 or group discounts. (See 

generally Policy.) But McCann acknowledged in a 1992 interview 

with Provident that he selected the Policy based on a “group 

discount”. (Plourde Aff., Ex. 6, Personal History Interview at 4; 

Provident SOF at ¶ 59.) The record demonstrates that McCann 

received a fifteen percent discount based on his association with 

Risk Group No. 62252, and additional discounts based on other 

facts, e.g., his election to pay his premiums in annual 

installments. (See Supp. Plourde Aff. at ¶¶ 6, 8-9; see also 5-9-

91 Letter from LEI to McCann at 1.)

E. McCann’s Claim Under the Policy, and Provident’s Subsequent 

Award and Termination of Benefits

McCann sent Provident a notice of claim for benefit payments

in 2007. (See Provident SOF at ¶ 64; McCann Response to Provident 

SOF at ¶ 64.) Provident, after determining that McCann was 

“totally disabled” and eligible for benefits under the Policy, 

began issuing benefit payments on or about April 1, 2007. (See

Provident SOF at ¶ 65; McCann Response to Provident SOF at ¶ 65.) 

But Provident terminated McCann’s benefit payments in 2009 after 

determining that “the medical documentation did not support a 

continuation of disability, and he was released to return to work 

full time by his treating cardiothoracic surgeon”. (Chavez Aff.

at ¶ 9.) 

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McCann sent Provident a written appeal, disputing its 

determination that he was not disabled and seeking reinstatement of 

his benefit payments. (See Provident SOF at ¶ 70; McCann Response 

to Provident SOF at ¶ 70.) Provident considered the written 

appeal, but upheld its determination in a letter dated September 

20, 2010. (See Provident SOF at ¶ 72; McCann Response to Provident 

SOF at ¶ 72; Chavez Aff., Ex. F, Final Determination Letter.) In 

the Final Determination Letter, Provident notified McCann of his 

right to file a civil suit pursuant to § 502(a) of ERISA, 29 U.S.C. 

§ 1132(a). (See Final Determination Letter; see also Chavez Aff. 

at ¶ 14.)

This action followed. (See generally Compl.) Insofar as the 

action concerns Provident, McCann alleges that Provident breached 

a contract -- i.e., the Policy -- by determining that he was not 

disabled and terminating his benefit payments. (See id. at

¶¶ 44-49.) He seeks, inter alia, payment of his allegedly past-due 

benefits and reinstatement of benefit payments. (See id.)5

 5 McCann also seeks an award of his reasonable attorney’s fees 

“[p]ursuant to 29 U.S.C. § 1132(g)” -- i.e., an award of reasonable 

attorney’s fees under ERISA. (Compl. at ¶ 50.) The Court notes 

that McCann paradoxically seeks fee-shifting relief under ERISA 

while steadfastly arguing against its application to this dispute. 

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V. ANALYSIS

The Court is tasked with determining whether Count I of the 

Complaint is governed by ERISA. Provident argues that the Policy 

was issued pursuant to the RSDP, that the RSDP is an employee 

welfare benefit plan (as that term is defined by ERISA), and that 

Count I of the Complaint is thus governed by ERISA. (See Provident 

Br. at 6-21; Provident Reply Br. at 4-15.) McCann contends that 

the Policy was not obtained under the RSDP and otherwise bears no 

relation to the RSDP, as he was not employed by the Hospital when

the Policy took effect. (See McCann Opp’n Br. at 8-11.)6

 He also 

appears to argue that the Policy, as distinguished from the RSDP, 

is not an employee welfare benefit plan. (See id. at 8-11, 12-15.) 

He fails, however, to directly address Provident’s argument that 

the RSDP is an employee welfare benefit plan. (See generally id.; 

McCann Br.)

McCann alternatively argues that the Safe Harbor Provision 

removes the Policy from the sphere of ERISA’s coverage. (See

McCann Opp’n Br. at 15-17; McCann Br. at 14-18.) Provident

disagrees, and contends, inter alia, that the Safe Harbor Provision 

is inapplicable here because: (1) RSDP policyholders enjoyed a 

 6 McCann also argues that the Policy (1) is not a continuation 

of coverage provided during his employment by the Hospital, and 

(2) does not relate to the SSDP or Base Plan. (See McCann Opp’n 

Br. at 9-12.) These arguments do not bear on the Court’s analysis, 

and will not be further addressed.

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group discount that they would not have received but for their 

employment by the Hospital; and (2) the Hospital endorsed the RSDP. 

(See dkt. entry no. 35, Provident Opp’n Br. at 15-28.)

“Congress enacted ERISA to protect working men and women from 

abuses in the administration and investment of . . . employee 

welfare plans.” Donovan v. Dillingham, 688 F.2d 1367, 1370 (11th 

Cir. 1982); see also Conkright v. Frommer, 130 S.Ct. 1640, 1648-49

(2010) (“Congress enacted ERISA to ensure that employees would 

receive the benefits they had earned, but Congress did not require 

employers to establish benefit plans in the first place.”) ERISA 

recognizes two types of employee welfare plans: “employee welfare 

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

§ 1002(3); Deibler v. United Food & Commercial Workers’ L. Union 

23, 973 F.2d 206, 209 (3d Cir. 1992). This action concerns an 

alleged employee welfare benefit plan.

An employee welfare benefit plan is a “plan, fund, or program 

. . . established or maintained by an employer . . . for the 

purpose of providing for its participants or their beneficiaries, 

through the purchase of insurance or otherwise . . . benefits in 

the event of sickness, accident, disability, death or unemployment 

. . . .” 29 U.S.C. § 1002(1). “Hence, a disability insurance 

policy is covered by ERISA if it is obtained through: (1) a plan, 

fund, or program; (2) that is established or maintained; (3) by an 

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employer; (4) for the purpose of providing benefits; (5) to its 

participants or beneficiaries.” Spillane v. AXA Fin., Inc., 648 

F.Supp.2d 690, 695 (E.D. Pa. 2009); see also Donovan, 688 F.2d at 

1371.

The Safe Harbor Provision addresses the second element; it 

describes when and to what extent an employer may be involved with 

an employee welfare benefit program without being deemed to have 

established or maintained it. See Johnson v. Watts Regulator Co., 

63 F.3d 1129, 1133 (1st Cir. 1995); Morris, 986 F.Supp. at 878. 

Specifically, it describes the extent to which an employer may be 

involved with a group insurance program offered to its employees. 

The Safe Harbor Provision removes such group insurance programs 

from the sphere of ERISA coverage where: 

(1) No contributions are made by an employer or employee 

organization;

(2) Participation the program is completely voluntary 

for employees or members;

(3) The sole functions of the employer or employee 

organization with respect to the program are, without 

endorsing the program, to permit the insurer to 

publicize the program to employees or members, to 

collect premiums through payroll deductions or dues 

checkoffs and to remit them to the insurer; and

(4) The employer or employee organization receives no 

consideration in the form of cash or otherwise in 

connection with the program, other than reasonable 

compensation, excluding any profit, for administrative 

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services actually rendered in connection with payroll 

deductions or dues checkoffs.

29 C.F.R. § 2510.3-1(j). 

If the Court determined that each of the Safe Harbor criteria 

are satisfied here, then the Court would necessarily conclude that

(1) the Hospital did not establish or maintain the RSDP, and 

(2) ERISA does not govern Count I of the Complaint. See Schneider 

v. UNUM Life Ins. Co. of Am., 149 F.Supp.2d 169, 176 (E.D. Pa. 

2001); Shiffler v. Equitable Life Assurance Soc’y of U.S., 663 

F.Supp. 155, 160 (E.D. Pa. 1986), aff’d, 838 F.2d 78 (3d Cir. 

1988). But a determination that one or more of the Safe Harbor 

criteria are not satisfied does not compel the conclusion that the 

claim raised against Provident is governed by ERISA. See Gaylor v. 

John Hancock Mut. Life Ins. Co., 112 F.3d 460, 463 (10th Cir. 

1997). “[A] program that fails to satisfy [each of the Safe Harbor 

criteria] is not automatically deemed to have been ‘established or 

maintained’ by the employer, but, rather, is subject to further 

evaluation under the conventional tests.” Id. (citation omitted).

A. The RSDP is a “Plan”

“Whether a plan exists within the meaning of ERISA is ‘a 

question of fact, to be answered in light of all the surrounding 

facts and circumstances from the point of view of a reasonable 

person.’” Deibler, 973 F.2d at 209 (citation omitted). An ERISA

plan exists “if from the surrounding circumstances a reasonable 

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person can ascertain the intended benefits, a class of 

beneficiaries, the source of financing, and procedures for 

receiving benefits.” Shaver v. Siemens Corp., 670 F.3d 462, 475 

(3d Cir. 2012) (quoting Donovan, 688 F.2d at 1373). 

Provident argues that a reasonable person could ascertain the 

intended benefits, class of beneficiaries, source of financing, and 

procedures for receiving benefits. (See Provident Br. at 6-11.) 

McCann has not provided a meaningful counterargument; he does not 

explicitly dispute that the RSDP is a “plan” under ERISA, and does 

not cite either to facts of record or legal authority that would 

tend to refute Provident’s argument.

The Court has examined the record and considered case law from 

this and other circuits, and agrees with Provident. A reasonable 

person who was familiar with all of the attendant facts and 

circumstances could ascertain both the intended benefits and 

beneficiaries of the RSDP. See Deibler, 973 F.2d at 209; Donovan,

688 F.2d at 1373. The RSDP did not exist in a vacuum. Instead, it 

complemented other, established LTD plans: the Base Plan, which 

provided LTD benefits to eligible Hospital employees, and the SSDP, 

which provided supplemental LTD benefits to eligible Hospital staff 

doctors. A reasonable person would recognize that the RSDP was 

analogous to the SSDP, as it provided similar supplemental LTD 

benefits to a defined class of Hospital employees, the Residents.

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A reasonable person could also ascertain the source of 

financing associated with RSDP policies. Courts in this and other 

circuits recognize that “[t]he source of funding may be the 

employer, the employee, or a combination of both.” Tannenbaum v. 

Unum Life Ins. Co. of Am., No. 03-1410, 2006 WL 2671405, at *4 

(E.D. Pa. Sept. 15, 2006) (citation omitted); see also Spillane, 

648 F.Supp.2d at 696; Grimo v. Blue Cross & Blue Shield of Vt., 899 

F.Supp. 196, 202 (D. Vt. 1995). It is thus sufficient that a 

reasonable person could ascertain that each RSDP policyholder bore 

responsibility for the premiums associated with his or her policy. 

(See Chavez Aff. at ¶ 5.) See Tannenbaum, 2006 WL 2671405, at *4.

A reasonable person could also ascertain the procedures for 

receiving benefits under a policy issued under the RSDP. 

“[A] reasonable person could ascertain that the employees were 

expected to look to the provisions of the policy and the insurer to 

determine the eligibility requirements to receive benefits. In 

Donovan, the Court found that ‘[t]his common sense approach’

adequately served employers’ needs and was sufficient notice to a 

reasonable person of the procedures for receiving benefits.” 

Weinstein v. Paul Revere Ins. Co., 15 F.Supp.2d 552, 557 (D.N.J. 

1998) (quoting Donovan, 688 F.2d at 1374).

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B. The Safe Harbor Criteria Have Not Been Satisfied

McCann contends that the RSDP satisfies each of the Safe 

Harbor criteria, and that ERISA does not govern Count I of the 

Complaint. (See McCann Opp’n Br. at 15, 16-17; McCann Br. at 14-

18.) Provident does not dispute that the RSDP satisfies the second 

and fourth of the Safe Harbor Criteria. (See Provident Reply Br. 

at 16.) But Provident argues that the first and third criteria 

have not been satisfied, as the Hospital both contributed to and 

endorsed the RSDP. (See Provident Opp’n Br. at 15-23.)

1. The Hospital Contributed to the RSDP

Provident argues that the Hospital contributed to the RSDP by 

providing a benefit to RSDP policyholders that was only available 

based on their employment by the Hospital: the fifteen percent 

discount associated with Risk Group No. 62252. (Provident Reply 

Br. at 16-21.) McCann has acknowledged that he received certain 

discounts from Provident, including a group discount. But he 

argues that an insurance company’s decision to confer a group 

discount should not be construed as an employer contribution. (See

McCann Opp’n Br. at 16-17; McCann Br. at 16-17.)7

 7 McCann cites to and quotes three cases in support of his 

argument that a group discount should not be construed as an 

employer contribution: (1) Schwartz v. Provident Life & Accident 

Ins. Co., 280 F.Supp.2d 937 (D. Az. 2003); (2) Letner v. Unum life 

Ins. Co. of Am., 203 F.Supp.2d 1291 (N.D. Fl. 2001); and (3) Rubin 

v. Guardian Life Ins. Co. of Am., 174 F.Supp.2d 1111 (D. Or. 2001). 

Insofar as the Letner Court found that a group discount could not 

constitute an employer contribution, we find it unpersuasive. And 

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The Third Circuit Court of Appeals has not yet interpreted the 

Safe Harbor Provision’s requirement that “no contributions are to 

be made by an employer”. But several courts within this circuit 

have considered the issue and concluded that “contribution” should 

be given its clear meaning. See, e.g., Morris, 986 F.Supp. at 880. 

These courts have concluded that group discounts applied to 

employee insurance policies, issued pursuant to an employee welfare 

benefit plan, constitute employer contributions. See Harding v. 

Provident Life & Accident Ins. Co., 809 F.Supp.2d 403, 417-18 (W.D. 

Pa. 2011); Tannenbaum, 2006 WL 2671405, at *6; Stone v. Disability 

Mgmt. Servs., Inc., 288 F.Supp.2d 684, 691-92 (E.D. Pa. 2003). 

These courts, and others sitting outside the Third Circuit, have 

reasoned that employees who receive such group discounts receive a 

benefit that they could not otherwise receive as individuals, and 

would not have received but for the employer’s role in creating the 

employee welfare benefit plan. See Harding, 809 F.Supp.2d at 417

(“when discounted premiums are offered to a group of employees, the 

Safe Harbor regulations are not applicable”); Brown v. Paul Revere 

Life Ins. Co., No. 01-1931, 2002 WL 1019021, at *7 (E.D. Pa. May 

20, 2002) (“Where an employer provides its employees benefits that 

they can not [sic] receive as individuals, it has contributed to an 

 

insofar as McCann cites to and quotes from Schwartz and Rubin, we 

note that these cases did not analyze whether an employer 

contributed to an employee welfare benefit plan; instead, they 

analyzed whether an employer endorsed such a plan. 

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ERISA plan.”); see also Healy v. Minn. Life Ins. Co., No. 11-659, 

2012 WL 566759, at *4-5 (W.D. Mo. Feb. 21, 2012); Moore v. Life 

Ins. Co. of N. Am., 708 F.Supp.2d 597, 607 (N.D.W.V. Mar. 25, 2010) 

(referring to group discount as “constructive contribution”), 

aff’d, 439 Fed.Appx. 245 (4th Cir. 2011). 

The Court finds this line of reasoning persuasive, and adopts 

and applies it to the instant dispute. The evidence of record 

demonstrates that McCann received a benefit that he would not have 

received but for his association with and employment by the 

hospital -- the Risk Discount associated with Risk Group No. 62252. 

(See Supp. Plourde Aff. at ¶¶ 6, 8-9.) The Court thus concludes 

that the Hospital contributed to the RSDP, and that the first Safe 

Harbor criterion is not satisfied.

2. The Hospital Endorsed the RSDP 

Provident also argues that the fourth Safe Harbor criterion is 

not satisfied because the Hospital endorsed the RSDP. 

The Third Circuit Court of Appeals has not yet addressed 

“endorsement”, i.e., the extent to which an employer may involve 

itself in an employee welfare benefit plan without removing that 

plan from the ambit of the Safe Harbor Provision. Other courts in 

this circuit have looked to the First Circuit’s decision in 

Johnson v. Watts Regulator Co. for guidance. See Ziesemer v. First 

Unum Life Ins. Co., No. 04-6429, 2006 WL 2465622, at *8-9 (D.N.J. 

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Aug. 23, 2006); Selkridge v. United of Omaha Life Ins. Co., 221 

F.Supp.2d 579, 583-84 (D.V.I. 2002); Schneider, 149 F.Supp.2d at 

177-78; Byard v. QualMed Plans for Health, Inc., 966 F.Supp. 354, 

359-60 (E.D. Pa. 1997). The Johnson court explained that the Safe 

Harbor Provision 

operates on the premise that the absence of employer 

involvement vitiates the necessity for ERISA safeguards. 

In theory, an employer can assist its work force by 

arranging for the provision of desirable coverage at 

attractive rates, but, by complying with the regulation, 

assure itself that, if it acts only as an honest broker 

and remains neutral vis-a-vis the plan’s operation, it 

will not be put to the trouble and expense that meeting 

ERISA's requirements entails.

Johnson, 63 F.3d at 1133. That court also explained that “the 

Department of Labor has called the employer neutrality that the 

third facet evokes the key to the rationale for not treating such a 

program as an employee benefit plan.” Id. at 1134 (citation 

omitted) (internal quotation marks omitted). 

The Johnson court held that an employer will be deemed to have 

endorsed a program where an objectively reasonable employee, in 

light of all of the surrounding facts and circumstances, “would 

conclude on the basis of the employer’s actions that the employer 

had not merely facilitated the program’s availability but had 

exercised control over it or made it appear to be part and parcel 

of the company’s own benefit package.” Id. at 1135. “Where, 

however, the employer separates itself from the program, making it 

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reasonably clear that the program is a third party’s offering, not 

subject to the employer’s control, then the safe harbor may be 

accessible.” Id. at 1137.

The endorsement inquiry set forth in Johnson is necessarily 

fact-intensive, and thus does not provide a bright-line rule. But 

courts in this circuit have concluded that an employer endorses an 

employee welfare benefit plan when it takes some action -- any 

action -- beyond that contemplated by the Safe Harbor Provision. 

See Ziesemer, 2006 WL 2465622, at *8-9; Post v. Hartford Ins. Co., 

No. 04-3230, 2005 WL 424945, at *3 (E.D. Pa. Feb. 23, 2005) (noting 

that an employer “who creates by contract with an insurance company 

a group insurance plan and designates which employees are eligible 

to enroll in it is outside the safe harbor”); Selkridge, 221 

F.Supp.2d at 583-84; Schneider, 149 F.Supp.2d at 177-78; Byard, 966 

F.Supp. at 359-60. By doing something more than permitting an

insurer to publicize a plan or collecting premiums through payroll 

deductions, an employer demonstrates such a degree of control over 

a plan that an objectively reasonable employee would consider it

“part and parcel of the company’s own benefits package.” See

Johnson, 63 F.3d at 1137; Shiffler, 663 F.Supp. at 160 (employer 

may endorse employee welfare benefit plan by, inter alia, selecting 

the insurer that underwrites employee policies).

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McCann contends that the Hospital did not endorse the RSDP 

because, “[b]eyond a single reference to [the Hospital] in the 

materials provided . . . by Manes, there is absolutely no evidence 

to remotely suggest than an objectively reasonable person in 

plaintiff’s position would have concluded that [the Hospital] 

endorsed” the RSDP. (McCann Opp’n Br. at 16.) He also argues that 

the Hospital failed to endorse the RSDP because: (1) the Hospital 

did not directly communicate that it endorsed the RSDP; (2) the 

Hospital did not participate in the application process; (3) the 

materials provided by LEI and Provident did not bear any indicia 

that the Hospital endorsed the RSDP; and (4) the Hospital did not 

administer the plan, insofar as it did not participate in the 

claims process. (McCann Br. at 16.) We disagree.

McCann’s argument ignores facts of record. An objectively 

reasonable employee -- or, as urged by McCann, “an objectively 

reasonable person in [McCann’s] position” -- would have understood 

that the Hospital endorsed the RSDP. See Selkridge, 221 F.Supp.2d 

at 583; Byard, 966 F.Supp. at 360. This understanding would rise 

from and be fostered by the agreements repeatedly executed by 

McCann and the Hospital, wherein the Hospital agreed to provide 

disability insurance as part of its standard benefits package. 

(See Provident SOF at ¶¶ 7-9; Response to Provident SOF at ¶¶ 7-9; 

First Program Agreement; Third Program Agreement.) The LEI 

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Marketing Materials further foster this understanding. Those 

materials explain that the Hospital selected Provident to “provide 

supplemental disability insurance to Ford physicians”, and referred 

to the “Residents’ Supplemental Disability Insurance Plan” and “the 

Resident[s’] Plan”. (LEI Marketing Materials at 1.) See

Selkridge, 221 F.Supp.2d at 583 (concluding that employer endorsed 

employee benefit plan based in part on the plan’s name, which 

referenced the related employer).

Because the Hospital took some action beyond merely allowing 

LEI and Provident to market insurance policies to the Residents, it 

appears that an objectively reasonable employee would conclude that 

the Hospital endorsed the RSDP. Contrary to McCann’s position, it 

is immaterial that the Hospital did not draft or administer the 

RSDP, or make decisions regarding claims. See Schneider, 149 

F.Supp.2d at 180-81. The Hospital demonstrated that it endorsed 

the plan by pledging to provide an opportunity to purchase 

supplemental LTD insurance, and selecting Provident to provide such 

insurance. (See First Program Agreement; Third Program Agreement; 

LEI Marketing Materials at 1.) See Shiffler, 663 F.Supp. at 160. 

The Court thus concludes that the third Safe Harbor criterion is 

not satisfied, as the Hospital endorsed the RSDP.

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C. The Hospital Established the RSDP

Because the Court has determined that the Safe Harbor 

Provision does not apply to the instant dispute, the Court must 

continue its analysis “under the conventional tests.” Gaylor, 112 

F.3d at 463.

Provident argues that the Hospital established the RSDP by, 

inter alia, selecting Provident as the insurance company that would 

underwrite the policies issued pursuant to the RSDP, and engaging 

LEI as its insurance broker. (See Provident Br. at 12-13, 14-15.) 

McCann does not directly respond to this argument. He instead 

appears to argue that the Hospital did not establish the plan 

because “[t]here is no evidence that [the Hospital] played any role 

in negotiating the terms of the Policy, drafting the Policy, 

collecting premiums, paying premiums, investigating claims, or 

processing claims.” (McCann Br. at 12.) He also argues that the 

Hospital “has had no administrative or financial involvement in 

[the] Policy from its inception”. (Id.)

An employer may easily establish an employee welfare benefit 

plan. See Gruber v. Hubbard, 159 F.3d 780, 789 (3d Cir. 1998); see 

also Credit Managers Ass’n of S. Cal. v. Kennesaw Life & Acc. Ins. 

Co., 809 F.2d 617, 625 (9th Cir. 1987) (“An employer . . . can 

establish an ERISA plan rather easily. Even if an employer does no 

more than arrange for a ‘group-type insurance program,’ it can 

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establish an ERISA plan, unless it is a mere advertiser who makes 

no contributions on behalf of its employees.”). “In order to 

establish or maintain a plan, there must be some meaningful degree 

of participation by the employer in the creation or administration 

of the plan, and an intent to provide its employees with a welfare 

benefit program.” Weinstein, 15 F.Supp.2d at 558 (citations 

omitted) (internal quotation marks omitted). 

No single act necessarily constitutes the establishment of an 

employee welfare benefit plan. See Donovan, 688 F.2d at 1373. 

However, where multiple polices are purchased, covering a class of 

employees, that is significant evidence of the establishment of a 

plan. See id.; Weinstein, 15 F.Supp.2d at 558 (referring to same 

as “substantial evidence”). “The crucial factor in determining 

whether a ‘plan’ has been established is whether the employer has 

expressed an intention to provide benefits on a regular and longterm basis.” Shaver, 670 F.3d at 478 (quoting Deibler, 973 F.2d at 

209) (internal brackets omitted). 

The record here contains substantial evidence that the 

Hospital established the RSDP, because it is undisputed that 

multiple Residents purchased policies issued pursuant to the RSDP. 

(See Provident SOF at ¶ 40 (deemed undisputed).) See Donovan, 688 

F.2d at 1373; Weinstein, 15 F.Supp.2d at 558. Seven Residents 

purchased RSDP policies while McCann was employed at the Hospital, 

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and twenty-five Residents participated in the RSDP between March 1, 

1991 and October 1, 1993. (See Provident SOF at ¶ 40.) 

The record also contains ample evidence demonstrating that the 

Hospital maintained the RSDP. The Hospital assumed some 

responsibility for the administration of the plan by engaging LEI 

as a broker, to contact Residents and make them aware of the 

opportunity to purchase supplemental insurance under the RSDP. 

(See Provident SOF at ¶ 58 (deemed undisputed); Plourde Aff. at 

¶ 19.) See Weinstein, 15 F.Supp.2d at 558 (finding that employer 

established an employee welfare benefit plan where it engaged an 

insurance broker). By engaging LEI, the Hospital assumed a role in 

the ongoing administration of the RSDP. See Weinstein, 15 

F.Supp.2d at 558. “In fact, the administrative duties of the 

insurance broker appear to have extended beyond the mere 

distribution of application forms.” Id. Manes did not merely 

provide McCann with an application; he spoke to McCann about the 

benefits available under the RSDP, and provided a written 

comparison of those benefits with those available under the 

Northwestern Policy. (See Handwritten Letter.) 

The Court thus concludes that the Hospital either established 

or maintained an employee welfare benefit plan.

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D. The Hospital is an “Employer”, and the RSDP Exists to Provide 

Supplemental LTD Benefits to the Residents

The Court has examined the record, and concludes that: (1) the 

Hospital is an “employer” within the meaning of ERISA; and (2) the 

RSDP exists to provide supplemental LTD benefits to the Residents. 

(See Plourde Aff. at ¶ 12 (noting purpose of RSDP).) See 29 

U.S.C. § 1002(5) (defining “employer” as “any person acting

directly as an employer . . . in relation to an employee benefit 

plan”). As McCann does not dispute these points, the Court will 

not further discuss them.

E. McCann is both a “Participant” and a “Beneficiary”, as Those 

Terms are Defined by ERISA

McCann urges the Court to conclude that ERISA does not govern 

Count I of the Complaint because he was not an employee of the 

Hospital when the Policy took effect. (See McCann Opp’n Br. at 9.) 

The Court has determined, however, that his argument is misplaced. 

The evidence demonstrates that McCann is both a “participant” in 

and a “beneficiary” of the RSDP.

1. McCann is a Participant in the RSDP

ERISA defines “participant” as “any employee or former 

employee of an employer . . . who is or may become eligible to 

receive a benefit of any type from an employee benefit plan which 

covers employees of such employer . . . .” 29 U.S.C. § 1002(7)

(emphasis added). The Court will deem a former employee to be 

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among those who “may become eligible” to receive benefits if he has 

a colorable claim that he will prevail in a suit for benefits. See

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117 (1989); 

Abraham v. Exxon Corp., 85 F.3d 1126, 1129 (5th Cir. 1996); see 

also Kennedy v. Conn. Gen. Life Ins. Co., 924 F.2d 698, 700 (7th 

Cir. 1991) (explaining that status as a participant “depends on an 

arguable claim, not on success”).

The record demonstrates that McCann is a “participant”, as 

McCann is a former employee of an employer -- the Hospital -- who 

became eligible to receive benefits under a “plan, fund or program” 

-- the RSDP – upon a showing of disability. (See Provident SOF at 

¶ 5, 7-9, 20; McCann Response to Provident SOF at ¶ 5, 7-9, 20.) 

See Abraham, 85 F.3d at 1129; but cf. Miller v. Rite Aid Corp., 334 

F.3d 335, 341-42 (3d Cir. 2003) (former employee was not a 

participant where he had not vested in the plan at issue during 

employment and could not, as a former employee, thereafter vest in 

the plan); Sallee v. Rexnord Corp., 985 F.2d 927, 929 (7th Cir. 

1993) (same).

2. McCann is a Beneficiary of the RSDP

ERISA defines “beneficiary” as “a person designated . . . by 

the terms of an employee benefit plan, who is or may become 

entitled to a benefit thereunder.” 29 U.S.C. § 1002(8). Because 

McCann received benefits under the Policy (which was issued 

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pursuant to the RSDP), and because McCann enjoyed an ongoing group 

discount, he was a beneficiary of the RSDP. See Keenan v. Unum 

Provident Corp., 252 F.Supp.2d 163, 168 (E.D. Pa. 2003) (concluding 

that plaintiff was beneficiary of disability insurance plan, “as 

evidenced by his receipt of disability benefits and the 15%

discount”).

VI. CONCLUSION

The Court has concluded that: (1) the RSDP is a plan (2) that 

was either established or maintained (3) by the Hospital (4) to 

provide supplemental LTD benefits (5) to participants, such as 

McCann. The Court, for good cause appearing, will issue a separate 

Order and Judgment, granting the Provident Motion, denying the 

McCann Cross Motion, and declaring that Count I of the Complaint is

governed by ERISA.8

 s/ Mary L. Cooper .

MARY L. COOPER

United States District Judge

Date: January 31, 2013

 8 It appears that ERISA preempts the breach of contract claim 

that McCann has raised against Provident. See 29 U.S.C. § 1144; 

Ford v. UNUM Life Ins. Co. of Am., 351 Fed.Appx. 703, 706 (3d Cir. 

2009); Estate of Casella v. Hartford Life Ins. Co., No. 09-2306, 

2009 WL 2488054, at *2-4 (D.N.J. Aug. 11, 2009). The Court will 

thus separately order the parties to show cause why judgment should 

not be entered on that claim against McCann and in Provident’s 

favor.

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