ANTHONY K. MODAFFERI, III & ASSOCIATES P.C.

 A Professional Corporation

 

Anthony K. Modafferi, III

 Member New York, New Jersey June 30, 2011 

 & District of Columbia Bars

Tel. (201) 946-7100

Facsimile (201) 337-3524

CARRIAGE HOUSE LAW CENTER, 647 RAMAPO VALLEY ROAD, OAKLAND, NJ 07436

Chambers, Honorable Stanley R. Chesler, U.S.D.J.

USPO & Courthouse PO08

Martin Luther King, Jr. Bldg. & U.S. Courthouse

50 Walnut Street

Newark, New Jersey 07101 1 

Re: New Jersey Pediatric Neurosurgical Associates, LLC v. Aetna, Inc. and 

Aetna Life Insurance Company, and John Does 1-100,

Case No. 2:11-cv-02278 (SRC-MAS) 

Defendants’ Motion to Dismiss: Returnable June 6, 2011 

Dear Judge Chesler: 

I respectfully alert the Court to a decision of the Ninth Circuit handed down on 

June 22, 2011, which discusses and resolves issues, which the parties argued in their 

briefs in connection with the defendants’ motion to dismiss. ECF Docket No. 2. 

In particular the new Ninth Circuit case overrules negative dicta in two cases I 

cited in my reply brief [ECF Docket no. 11] in Everhart v. Allmerica Financial Life 

Insurance Co., 275 F.3d 751, 756 (9th Cir. 2001) at page 13, and Gelardi v. Pertec 

Computer Corp., 761 F.2d 1323 (9th Cir. 1985) at page 14.

In Cyr v. Reliance Standard Life Ins. Co., No. 07-56869 (9th Cir. June 22, 2011), 

the en banc Ninth Circuit without dissent – held that parties other than benefit plans and 

plan administrators may be liable for payment of benefits under 29 U.S.C. § 

1132(a)(1)(B). The court held unanimously that an insurer - even one that is not a plan 

administrator - may be sued under this section. Notably, the court began by noting that 

neither the plain language of the section nor the Department of Labor regulations limit 

the category of party-defendants. The court also noted that in Harris Trust & Savings 

Bank v. Salomon Smith Barney, Inc., 530 U.S. 238 (2000), a case interpreting a 

companion section, § 502(a)(3), the Supreme Court declined to imply a limitation on who 

could be a proper defendant. The court also determined that the category of permissible 

defendants under this section was supported by yet another remedial enforcement 

provision:

Case 2:11-cv-02278-SRC-MAS Document 21 Filed 06/30/11 Page 1 of 2 PageID: 334
Chambers, Honorable Stanley R. Chesler, U.S.D.J.

USPO & Courthouse PO08

Martin Luther King, Jr. Bldg. & U.S. Courthouse

50 Walnut Street

Newark, New Jersey 07101

June 30, 2011/ page 2

Section 1132(d)(2) provides that '[a]ny money judgment under this subchapter against an 

employee benefit plan shall be enforceable only against the plan as an entity and shall not 

be enforceable against any other person unless liability against such person is established 

in his individual capacity under this subchapter.' The 'unless' clause necessarily indicates 

that parties other than plans can be sued for money damages under other provisions of 

ERISA, such as § 1132(a)(1)(B), as long as that party's individual liability is established.

Finally, the court held that Cyr selected the correct defendant:

"Reliance denied Cyr's request for increased benefits even though, as the plan 

insurer, it was responsible for paying legitimate benefits claims. Reliance is, 

therefore, a logical defendant for an action by Cyr to recover benefits due to her 

under the terms of the plan and to enforce her rights under the terms of the plan, 

which is precisely the civil action authorized by § 1132(a)(1)(B)."

The court overruled the contrary language in Ford v. MCI Communications Corp. Health 

& Welfare Plan, 399 F.3d 1076, 1081 (9th Cir. 2005); Everhart v. Allmerica Financial 

Life Insurance Co., 275 F.3d 751, 756 (9th Cir. 2001); Spain v. Aetna Life Insurance Co., 

13 F.3d 310, 312 (9th Cir. 1993); and Gelardi v. Pertec Computer Corp., 761 F.2d 1323 

(9th Cir. 1985).

Accordingly, in the event that the Court determines that the plaintiffs are participants 

under ERISA, the Ninth Circuit’s recent decision makes it clear that Aetna itself is a 

proper party defendant. 

Respectfully Yours, 

s/Anthony Modafferi

cc: Honorable Magistrate Judge, Michael A. Shipp (with encl.)

Paul Kelley, Esq.

New Jersey Pediatric Neurosurgical Associates, LLC

Case 2:11-cv-02278-SRC-MAS Document 21 Filed 06/30/11 Page 2 of 2 PageID: 335