ERISA and Life Insurance News

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Attorneys at Law

ERISA and Life Insurance News &overinJ (5,S$ and /iIe +ealth and 'isabilit\ ,nsurance /itiJation

INSIDE THIS ISSUE

3

No Conflict Analysis Is Necessary When ERISA Benefits Decision Is De Novo Correct

4

Incontestable Clause Runs from Original Policy Date, Despite Misrepresentations in Renewal Applications

5

Breach of Fiduciary Duty Claim Requires Proof of Causation, Not Merely Loss of Plan Value

6

Second Injury during Continuous Total Disability Does Not Result in New Maximum Benefit Period

7

Physician Totally Disabled Due to Sickness Cannot Reclassify Disability Based on Later Sustained Injury

8

Group Policies Issued to Out-of-State Corporations Valid and Enforceable without Prior DOI Approval

)(%58$5<

Another Circuit Applies the Moench Presumption in â&#x20AC;&#x153;Stock Dropâ&#x20AC;? Cases

When a corporation makes its own stock available as an investment option in a retirement plan and the stock declines in valXe the planÂśs ÂżdXciaries sometimes Iace claims that the\ violated their dXt\ to act prXdentl\ in the manaJement oI the plan. Such â&#x20AC;&#x153;stock dropâ&#x20AC;? cases illustrate the tension between two oI (5,S$Âśs primar\ Joals

9

Releases of ERISA Claims Entered into Knowingly and Voluntarily Are Binding on Former Employees

10

Statutory Penalty Recoverable Only from Plan Administrator, Not from Claims Administrator

10

De Facto Plan Administrator Doctrine Does Not Apply to Claims Paying Insurer

Ĺ&#x201A; 7he encouraJement oI emplo\ee ownership throuJh special status provided to eliJible individual account plans (,$3s

includinJ emplo\ee stock ownership plans (S23s .

11

Treating Physicianâ&#x20AC;&#x2122;s Opinion May Be Discounted When Inconsistent or Contradicted by Specialists

(S23s are intended b\ deÂżnition to encouraJe investment in TualiI\inJ emplo\er securities. &ourts recoJni]e that as a result the\ â&#x20AC;&#x153;place>@ emplo\ee retirement assets at much Jreater risk than does the t\pical diversiÂżed (5,S$ plan.â&#x20AC;? Martin v. Feilen ). d th &ir. .

Ĺ&#x201A; 7he protection oI emplo\ee retirement Iunds b\ imposinJ Âżduciar\ duties on plan manaJers and

&217,18(' 21 3$*( !!

&217,18(' )520 3$*( &onJress has Jranted special status to retirement plans that oIIer investment in emplo\er stock b\ creatinJ a TualiÂżed e[emption Irom the prudence requirement imposed on plan Âżduciaries. â&#x20AC;&#x153;,n the case oI an >(,$3@ the diversiÂżcation requirement â&#x20AC;Ś and the prudence requirement onl\ to the e[tent that it requires diversiÂżcation â&#x20AC;Ś is not violated b\ acquisition or holdinJ oI â&#x20AC;Ś qualiI\inJ emplo\er securities â&#x20AC;Ś.â&#x20AC;? 8.S.&. Â&#x2020; a

. (ven so Âżduciaries oI (S23s ma\ Iace alleJations that the\ acted imprudentl\ b\ not divestinJ plans oI emplo\er stock when the stock value declines or when the emplo\er Iaces siJniÂżcant Âżnancial problems.

(5,S$ requires Âżduciaries to act â&#x20AC;&#x153;in accordance with the documents â&#x20AC;Ś JoverninJ the plan insoIar as such documents â&#x20AC;Ś are consistent with the provisions >oI (5,S$@.â&#x20AC;?

8.S.&. Â&#x2020; a

' . %ut when a plan requires investment in emplo\er stock (5,S$ does not sa\ when such a requirement miJht become inconsistent with the $ctÂśs Âżduciar\ requirements.

When Ior e[ample miJht a Âżduciar\ be required to disobe\ the requirements oI the plan and halt the purchase oI emplo\er stock" 2r required to sell emplo\er stock" Presumption of Compliance with ERISA Several circuit courts have addressed the standard b\ which (S23 Âżduciaries are to be MudJed in such circumstances. %eJinninJ with the 7hird &ircuit in Moench v. Robertson, ). d d &ir. , these courts have adopted a presumption oI compliance with (5,S$ when a Âżduciar\ invests retirement assets in the emplo\erÂśs stock. ,n Moench, the (S23 Âżduciar\ continued to invest in compan\ stock aIter the share price dropped Irom . to . over a two \ear period. $ppl\inJ what has become 2

known as the Moench presumption, the 7hird &ircuit held >$@n (S23 Âżduciar\ who invests the assets in emplo\er stock is entitled to a presumption that it acted consistentl\ with (5,S$ b\ virtue oI that decision. +owever, the plaintiII ma\ overcome that presumption b\ establishinJ that the Âżduciar\ abused its discretion b\ investinJ in emplo\er securities.

7hat presumption was adopted b\ the Si[th, )iIth, and 1inth &ircuits in Kuper v. Iovenko, ). d , th &ir. â&#x20AC;&#x153;the purpose oI (5,S$ and the nature oI (S23s requires that we review an (S23 Âżduciar\Âśs decision to invest in emplo\er securities Ior an abuse oI discretionâ&#x20AC;?

Kirschbaum v.

Reliant Energy, Inc., 526 F.3d 243, 254 5th &ir. 2 â&#x20AC;&#x153;7he Moench presumption â&#x20AC;Ś applies to an\ alleJations oI Âżduciar\ dut\ breach Ior Iailure to divest an â&#x20AC;Ś (S23 oI compan\ stock.â&#x20AC;? and Quan v. Computer Scis.

Corp., 623 F.3d , th &ir.

2 the presumption â&#x20AC;&#x153;is consistent with the statutor\ lanJuaJe oI (5,S$ and the trust principles b\ which (5,S$ is interpretedâ&#x20AC;? .

drop, and that the plan Âżduciaries breached their duties oI prudence and lo\alt\ b\ reIusinJ to divest the plans oI &itiJroup stock, even thouJh the compan\Âśs â&#x20AC;&#x153;perilous operations tied to the subprime securities marketâ&#x20AC;? made it an imprudent investment option.

3laintiIIs arJued that a prudent Âżduciar\ would have Ioreseen the stock drop and either suspended the participantsÂś abilit\ to invest in the stock Iund or diversiÂżed the Iund so that it held less compan\ stock.

7he plan documents, however, mandated that the &itiJroup &ommon Stock Fund be included as an investment option, alonJ with at least three other investment Iunds.

7hereIore, the Âżduciaries arJued that the\ had no discretion to eliminate &itiJroup stock as an investment option.

Second Circuit Applies Deferential Review 0ore recentl\ in In re: Citigroup ERISA Litigation, 2 8.S. $pp. /(;,S 2 463 2d &ir. 2ct. , 2 , the Second &ircuit came to the same conclusion, holdinJ that an (S23 Âżduciar\Âśs decision to continue oIIerinJ retirement plan participants the opportunit\ to invest in &itiJroup stock should be reviewed Ior an abuse oI discretion, and that no abuse oI discretion was shown.

7he case involved two retirement plans which oIIered the &itiJroup &ommon Stock Fund as an investment option, amonJ 2 to 4 other options available to plan participants. $Iter a sharp drop in the price oI &itiJroup stock, a class action lawsuit was Âżled.

7he plaintiIIs alleJed that &itiJroupÂśs participation in the subprime mortJaJe market caused the stock

7he district court aJreed and held that, even iI the Âżduciaries had been Jiven the discretion to eliminate the compan\ stock Iund as an option, the\ were entitled to a presumption that investment in the Iund, as required b\ the planÂśs terms, was prudent. 7he court Iurther held that the Iacts alleJed b\ the plaintiIIs were insuIÂżcient to overcome that presumption. 2009 8.S. 'ist. /(;,S 055 S.'.1.<. $uJ. 3 , 2009 .

7he Second &ircuit also aJreed and held that the ÂżduciariesÂś â&#x20AC;&#x153;decisions not to divest the 3lans oI &itiJroup stock or impose restrictions on participantsâ&#x20AC;&#x2122; investment in that stock are entitled to a presumption oI prudence and should be reviewed Ior an abuse oI discretion, as opposed to a stricter standard.â&#x20AC;?

Moench Presumption Applied to EIAPs and ESOPs â&#x20AC;&#x153;We now Moin our sister circuits in adoptinJ the Moench presumption,â&#x20AC;? the court wrote, â&#x20AC;&#x153;and we do so with respect to both (,$3s and (S23s Âą because, as those courts have recoJni]ed, it provides the best accommodation between the competinJ (5,S$ values oI protectinJ retirement assets and encouraJinJ investment in emplo\er stock.â&#x20AC;? â&#x20AC;&#x153;7his presumption ma\ be rebutted iI an (,$3 or (S23 Âżduciar\ abuses his discretion b\ continuinJ to oIIer plan participants the opportunit\ to invest in emplo\er stock,â&#x20AC;? the court said. â&#x20AC;&#x153;We endorse the ÂľJuidinJ principleâ&#x20AC;&#x2122; endorsed in Quan that Mudicial scrutin\ should increase with the deJree oI discretion a plan Jives its Âżduciaries to invest.â&#x20AC;?

+ere, the &itiJroup plan required that the compan\â&#x20AC;&#x2122;s stock Iund be included as an investment option. â&#x20AC;&#x153;7hus,â&#x20AC;? the court said, â&#x20AC;&#x153;a Âżduciar\â&#x20AC;&#x2122;s Iailure to divest Irom compan\ stock is less likel\ to constitute an abuse oI discretion iI the planâ&#x20AC;&#x2122;s terms require Âą rather than merel\ permit Âą investment in compan\ stock.â&#x20AC;?

7he Second &ircuit cited Moench Ior the proposition that Âżduciaries should override plan terms requirinJ investment in compan\ stock onl\ when â&#x20AC;&#x153;owinJ to circumstances not known to the >plan@ settlor and not anticipated b\ him,â&#x20AC;? maintaininJ the investment â&#x20AC;&#x153;would deIeat or substantiall\ impair the accomplishment oI the purposes oI the >3lan@.â&#x20AC;? 62 F.3d at 5 .

the settlor could require Âżduciaries to override plan terms,â&#x20AC;? the court said. â&#x20AC;&#x153;7he test oI prudence is, as the dissent points out, one oI conduct rather than results, and the abuse oI discretion standard ensures that a Âżduciar\â&#x20AC;&#x2122;s conduct cannot be second Juessed so lonJ as it is reasonable.â&#x20AC;?

7he court noted that durinJ the class period, &itiJroup stock dropped in price Irom 55. 0 to 2 . 4 per share, a loss oI Must over 50 percent. â&#x20AC;&#x153;2ther courts have Iound plaintiIIs unable to overcome the 0oench presumption in the Iace oI similar declines,â&#x20AC;? the court said, citinJ Kirschbaum, 526 F.3d at 24 40 drop , Kuper, 66 F.3d at 45 0 drop , and Edgar v. Avaya, Inc., 503 F.3d 34 , 344 3d &ir. 200 25 drop .

â&#x20AC;&#x153;>W@e believe that onl\ circumstances placinJ the emplo\er in a Âľdire situationâ&#x20AC;&#x2122; that was obMectivel\ unIoreseeable b\

1o ConĂ&#x20AC;ict Anal\sis ,s 1ecessar\ :hen (5,SA %eneÂżts Decision ,s De Novo Correct Ray v. Sun Life & Health Ins. Co., 8 S App /(;,S th Cir 2ct

,n 2005, 5a\ submitted a claim to Sun /iIe Ior lonJ term disabilit\ beneÂżts under an (5,S$ plan, based on a heart condition. ,n support oI the claim, 5a\â&#x20AC;&#x2122;s treatinJ ph\sician stated that her heart condition completel\ limited her abilit\ to work.

Sun /iIe approved 5a\â&#x20AC;&#x2122;s claim, but said that it would seek periodic medical updates to veriI\ her continued eliJibilit\ Ior beneÂżts. $s part oI the continuinJ evaluation, 5a\â&#x20AC;&#x2122;s treatinJ ph\sician submitted statements in 2006 and 200 , reiteratinJ that 5a\ remained totall\ disabled. Sun /iIe also reviewed 5a\â&#x20AC;&#x2122;s medical records, which contradicted her claims and those oI her treatinJ ph\sician. $Iter conductinJ surveillance that Iurther undermined 5a\â&#x20AC;&#x2122;s claim,

Sun /iIe had her Âżle reviewed b\ an independent ph\sician consultant, who concluded that 5a\ was capable oI returninJ to her own occupation.

Sun /iIe terminated the pa\ment oI disabilit\ beneÂżts.

5a\ Âżled suit aJainst Sun /iIe, and the Iederal district court upheld Sun /iIeâ&#x20AC;&#x2122;s decision that additional lonJ term disabilit\ beneÂżts were not pa\able.

52 F. Supp. 2d 229 1.'. $la.

20 0 . 5a\ appealed.

5a\ administrativel\ appealed this determination, submittinJ her award oI social securit\ disabilit\ beneÂżts.

Sun /iIe had the Âżle reviewed b\ another independent ph\sician, who concluded that 5a\ was capable oI liJht and sedentar\ work, and that she could return to her own occupation.

2n appeal, the (leventh &ircuit aIÂżrmed the si[ step Iramework it has established Ior evaluatinJ an (5,S$ beneÂżts decision

Sun /iIe Jave the report to 5a\, oIIerinJ her additional time to submit inIormation to counter the independent ph\sicianâ&#x20AC;&#x2122;s conclusion.

5a\ did not provide an\ additional documents, and Sun /iIe upheld its decision to terminate the pa\ment oI beneÂżts.

determine whether the beneÂżts denial decision is de novo wronJ 2 iI the decision was wronJ, determine whether the administrator had discretion iI not, reverse the decision 3 iI there was discretion, determine whether the decision was reasonable

&217,18(' 21 3$*( 4!!

3

&217,18(' F520 3$*( 3 4 iI the beneÂżts decision was not reasonable, reverse it iI it was reasonable, then determine iI there was a conĂ&#x20AC;ict oI interest 5 iI there is no conĂ&#x20AC;ict, aIÂżrm the decision 6 iI there was a conĂ&#x20AC;ict, consider it as merel\ one Iactor in determininJ whether the beneÂżts denial was arbitrar\ and capricious.

%ased on evidence in the record contradictinJ 5a\â&#x20AC;&#x2122;s treatinJ ph\sician, the district court determined that Sun /iIeâ&#x20AC;&#x2122;s decision was not de novo wronJ. 7he (leventh &ircuit aJreed, statinJ that an (5,S$ beneÂżts administrator need not accord special weiJht to a treatinJ ph\sicianâ&#x20AC;&#x2122;s opinion, and that a social securit\ beneÂżts award is not determinative oI a claimantâ&#x20AC;&#x2122;s entitlement to beneÂżts.

was not de novo wronJ â&#x20AC;&#x153;should end the inquir\ under our multi step Iramework.â&#x20AC;? +owever, both the (leventh &ircuit and the district court held that, even iI the determination were de novo wronJ, it was reasonable, and an\ conĂ&#x20AC;ict oI interest did not taint Sun /iIeâ&#x20AC;&#x2122;s decision so as to render the decision arbitrar\ and capricious.

7he (leventh &ircuit stated that its conclusion that Sun /iIeâ&#x20AC;&#x2122;s decision

,ncontestaEle Clause 5uns Irom 2riJinal Polic\ Date Despite Misrepresentations in Renewal Applications Flynt v. Life of the South Ins. Co., *a App /(;,S 1oY

Fl\nt, a crop duster, died when his plane crashed in 200 . $t the time oI his death, Fl\nt had three outstandinJ loans with a bank. 7he bank made credit liIe insurance available to its borrowers under a Jroup polic\ issued b\ /iIe oI the South, and Fl\nt obtained coveraJe under the Jroup polic\ in 2003 and 2004 when he took the loans. ,n 2006, /iIe oI the South revised the Jroup polic\ and the application Ior coveraJe b\ includinJ in the application a statement that the borrower had not been diaJnosed with or treated Ior various illnesses, includinJ diabetes.

When Fl\nt applied Ior coveraJe in 2003 and 2004, his application did not include a representation reJardinJ diabetes.

Fl\nt renewed his loans in 2006 and 200 . +e also renewed his credit liIe insurance b\ siJninJ new applications, resultinJ in the issuance oI new certiÂżcates oI insurance. ,n the new applications, Fl\nt represented that he had not been diaJnosed with diabetes, althouJh his doctor had diaJnosed him with 7\pe ,, diabetes in the late 990s. $Iter Fl\ntâ&#x20AC;&#x2122;s death, his widow submitted claims under his three certiÂżcates oI 4

credit liIe insurance. /iIe oI the South denied her claims and souJht to rescind the coveraJe, contendinJ that Fl\nt had misrepresented his health when he submitted applications to renew his coveraJe in 2006 and 200 .

7he widow sued, contendinJ that /iIe oI the South was precluded Irom den\inJ or rescindinJ coveraJe b\ the incontestabilit\ clause in each certiÂżcate, which provided â&#x20AC;&#x153;We cannot contest the insurance evidenced b\ the &ertiÂżcate aIter it has been in Iorce two 2 \ears durinJ \our â&#x20AC;Ś liIetime.â&#x20AC;?

7he trial court Jranted summar\ MudJment to /iIe oI the South, concludinJ that each renewal certiÂżcate was a separate and distinct contract oI insurance and that the two \ear contestabilit\ period beJan to run anew upon the issuance oI each new certiÂżcate. %ecause Fl\ntâ&#x20AC;&#x2122;s death occurred within two \ears aIter the renewal certiÂżcates were issued, the court ruled that the coveraJe had not become incontestable.

7he *eorJia &ourt oI $ppeals reversed, holdinJ that Fl\ntâ&#x20AC;&#x2122;s coveraJe became incontestable two \ears aIter his oriJinal certiÂżcates were issued in 2003 and 2004, and

that a new contestabilit\ period did not beJin to run each time the Jroup polic\ was revised or a new certiÂżcate was issued.

7he court concluded that the incontestabilit\ clause, when construed with another provision oI the 2006 Jroup polic\, was not intended to beJin runninJ anew each time the polic\ was revised. 7he other provision dealt with earl\ discharJe oI the borrowerâ&#x20AC;&#x2122;s indebtedness beIore the scheduled maturit\ date, and stated â&#x20AC;&#x153;1othinJ in this provision shall preclude the ,ncontestabilit\ &lause.â&#x20AC;?

7his lanJuaJe, the court said, showed the partiesâ&#x20AC;&#x2122; intent that the two \ear contestabilit\ period would beJin to run Irom the time Fl\nt Âżrst obtained credit liIe insurance Irom /iIe oI the South in 2003 and 2004. â&#x20AC;&#x153;,t Iollows,â&#x20AC;? the court said, â&#x20AC;&#x153;that the incontestabilit\ provision had become operative b\ the time oI >Fl\ntâ&#x20AC;&#x2122;s@ death in 200 and precluded /iIe oI the South Irom den\inJ or rescindinJ insurance coveraJe based upon his representations in 2006 and 200 concerninJ his health.â&#x20AC;?â&#x20AC;?

%reach oI )iGuciar\ Dut\ Claim ReTuires ProoI oI Causation 1ot Merel\ /oss oI Plan 9alue Plasterersâ&#x20AC;&#x2122; Local Union No. 96 Pension Plan v. Pepper, ) G th Cir

7he Fourth &ircuit has Moined other circuit courts in imposinJ a causation requirement in (5,S$ breach oI Âżduciar\ dut\ cases based on the Iailure oI a pension planâ&#x20AC;&#x2122;s trustees to investiJate and to diversiI\ the planâ&#x20AC;&#x2122;s investment options.

7he deIendants, Iormer Âżduciaries oI the 3lasterersâ&#x20AC;&#x2122; /ocal 8nion pension plan, alleJedl\ Iailed to periodicall\ evaluate the planâ&#x20AC;&#x2122;s investments. From 995 throuJh 2005, the planâ&#x20AC;&#x2122;s assets were invested entirel\ in certiÂżcates oI deposit and in one to two \ear 7reasur\ bills. 7he deIendants testiÂżed that their obMective had been â&#x20AC;&#x153;to avoid the risk oI losinJ mone\.â&#x20AC;?

7he e[pert witness Ior the current trustees, who brouJht the lawsuit, testiÂżed that a â&#x20AC;&#x153;prudent investment strateJ\â&#x20AC;? would have been a 50 50 mi[ oI S 3 500 and %arcla\s &apital $JJreJate %ond ,nde[ investments. 8tili]inJ such an investment and lookinJ at the period 'ecember 3 , 2002, to 'ecember 3 , 2005, would have resulted in an investment value oI 432,9 6 more than the actual value.

7he deIendantsâ&#x20AC;&#x2122; e[pert testiÂżed that their strateJ\ was prudent, â&#x20AC;&#x153;Jiven the particular characteristics aIIectinJ the 3lan, includinJ the declininJ union membership, that it was a deÂżned contribution plan, the uncertainties oI the market in the earl\ and mid 2000s, and the %oardâ&#x20AC;&#x2122;s conservative set oI obMectives.â&#x20AC;?

7he Iederal district court Iound that the Iormer trustees had breached the dut\ to investiJate and to review the investment options, as well as the dut\ oI diversiÂżcation, and entered MudJment aJainst the deIendants in the amount oI 432,9 6, plus attorne\â&#x20AC;&#x2122;s Iees and costs.

7he Fourth &ircuit, however, determined that there was a â&#x20AC;&#x153;noticeable Japâ&#x20AC;? in the district courtâ&#x20AC;&#x2122;s anal\sis between its ÂżndinJ oI Âżduciar\ breaches and its conclusion that the deIendants were liable in damaJes Ior the diIIerence between the planâ&#x20AC;&#x2122;s actual perIormance and its h\pothetical perIormance. â&#x20AC;&#x153;>S@impl\ ÂżndinJ a Iailure to investiJate or diversiI\ does not automaticall\ equate to causation oI loss and thereIore liabilit\,â&#x20AC;? the court held.

SpeciÂżcall\, the court elaborated, the ÂżndinJ oI Âżduciar\ breaches â&#x20AC;&#x153;did not establish as a matter oI law that the actual investments were imprudent and liabilit\ can onl\ attach iI in Iact that is the case.â&#x20AC;? (5,S$ â&#x20AC;&#x153;requires an

independent ÂżndinJ oI causation oI loss beIore liabilit\ Ior a breach oI a Âżduciar\ dut\ is incurred,â&#x20AC;? the court continued.

7he court also noted that the district court, on remand, would have to determine which part\ bore the burden oI prooI with respect to causation. â&#x20AC;&#x153;While the plaintiII bears the burden oI at least makinJ a prima Iacie showinJ that there was a breach oI Âżduciar\ dut\ and that there was some loss to the 3lan, the circuit courts oI appeal are split as to which part\ must demonstrate that the loss resulted Irom the breach,â&#x20AC;? the court wrote. 7he Fourth &ircuit declined to decide which oI these approaches was appropriate.

5

SeconG ,nMur\ GurinJ Continuous 7otal DisaEilit\ Does 1ot Result in 1ew Ma[imum %eneÂżt PerioG Burnett v. Combined Ins. Co. of Am., 8 S Dist /(;,S M D *a Dec

%urnett became totall\ disabled in Februar\ 200 as the result oI a low back inMur\ sustained when he Iell Irom a tractor trailer truck. &ombined beJan pa\inJ beneÂżts in 0arch 200 under a disabilit\ polic\ that provided a ma[imum beneÂżt period oI two \ears â&#x20AC;&#x153;Ior an\ one accident or sickness.â&#x20AC;? ,n Februar\ 2009, while still totall\ disabled and receivinJ beneÂżts, %urnett Iell Irom a step ladder and inMured his back and shoulder. +e submitted a second claim Ior disabilit\ beneÂżts, contendinJ that he was entitled to another two \ear beneÂżt period. &ombined denied the claim because %urnett had never recovered Irom his oriJinal disabilit\.

7he polic\ contained a recurrent disabilit\ provision, which stated that â&#x20AC;&#x153;>s@uccessive periods oI total disabilit\ will be considered one period oI total disabilit\ unless such periods are separated b\ at least 0 da\s or the disabilities resulted Irom diIIerent or unrelated inMuries or sickness.â&#x20AC;? %urnett contended that this provision applied, because his new disabilit\ was due to an unrelated inMur\. &ombined contended, however, that the recurrent disabilit\ provision, b\ its e[press lanJuaJe, applied to

successive periods oI total disabilit\, not to successive inMuries. &ombined relied on the polic\â&#x20AC;&#x2122;s concurrent disabilit\ provision, which stated that â&#x20AC;&#x153;>i@I the insured is disabled as the result oI one inMur\ or sickness or both an inMur\ and a sickness, >then the@ beneÂżts will be paid as iI the disabilit\ were the result oI onl\ one inMur\ or sickness.â&#x20AC;? %urnett sued, and the district court Jranted summar\ MudJment to &ombined, concludinJ that %urnettâ&#x20AC;&#x2122;s second inMur\, even iI totall\ disablinJ, resulted in a concurrent disabilit\, not a recurrent disabilit\. ,n the absence oI an\ *eorJia case on point, the court relied on cases Irom other Murisdictions and concluded that â&#x20AC;&#x153;the 3laintiII did not have successive periods oI disabilit\ due to diIIerent inMuries, but rather, the 3laintiII had

6

one sinJle and uninterrupted period oI disabilit\.â&#x20AC;?

When he Iell Irom the step ladder in 2009, %urnett â&#x20AC;&#x153;was still totall\ disabled and had not at an\ point been classiÂżed as an\thinJ other than totall\ disabled b\ his doctors,â&#x20AC;? the court said. â&#x20AC;&#x153;$ new, successive, disabilit\ period could not beJin while the 3laintiII was still disabled Irom his Âżrst inMur\.â&#x20AC;?

7he court concluded â&#x20AC;&#x153;7he Iact that there was a second inMur\ durinJ the 3laintiIIâ&#x20AC;&#x2122;s period oI complete disabilit\ does not chanJe the Iact that the 3laintiII onl\ had one period oI disabilit\ and not two successive periods. 7he 3laintiIIâ&#x20AC;&#x2122;s inMur\ could onl\ be a recurrent disabilit\, entitlinJ him to a new disabilit\ period, iI the unrelated inMur\ had been aIter the end oI his Âżrst disabilit\ period.â&#x20AC;?

Ph\sician 7otall\ DisaEleG Due to Sickness Cannot ReclassiI\ DisaEilit\ %aseG on /ater SustaineG ,nMur\ Laun v. AXA Equitable Life Ins. Co., *a App S ( G

'r. /aun, a surJeon, was covered b\ a disabilit\ income insurance polic\ issued b\ $;$ (quitable. 7he polic\ provided beneÂżts Ior two t\pes oI total disabilit\

â&#x20AC;&#x153;accident total disabilit\,â&#x20AC;? deÂżned as total disabilit\ resultinJ Irom inMur\, and 2 â&#x20AC;&#x153;sickness total disabilit\,â&#x20AC;? deÂżned as total disabilit\ caused or contributed to b\ sickness or b\ medical or surJical treatment oI an\ sickness or disease.

'r. /aun sued, and (quitable moved Ior summar\ MudJment, arJuinJ that the disabilit\ could not be reclassiÂżed because it was caused and contributed to b\ his thumb illness, and because 'r. /aun was not enJaJed in his occupation when he reportedl\ became disabled due to his wrist inMur\. 7he trial court Jranted $;$ (quitableâ&#x20AC;&#x2122;s motion Ior summar\ MudJment.

7he polic\ provided liIetime beneÂżts Ior accident total disabilit\, but provided beneÂżts onl\ to aJe 65 Ior sickness total disabilit\.

2n appeal, 'r. /aun arJued that his disabilit\ should have been reclassiÂżed because the polic\ did not state that reclassiÂżcation was prohibited, because his wrist bothered him more than his thumbs, and because he had hoped to return to his surJical practice until he inMured his wrist.

,n 2003, 'r. /aun was diaJnosed with bilateral basal osteoarthritis oI his thumbs, a deJenerative Moint condition that caused pain in the base oI his thumbs aIter he perIormed surJer\. ,n 1ovember 2003, 'r. /aun stopped perIorminJ surJer\ and submitted a claim Ior total disabilit\ caused b\ sickness. +is claim was approved.

While recoverinJ Irom surJer\ to correct the condition in his thumbs, 'r. /aun Iell and sprained his wrist. 'r. /aun wrote to $;$ (quitable, describinJ his wrist inMur\ and requestinJ that the status oI his claim be chanJed to accident total disabilit\, Ior which liIetime beneÂżts could be paid. $n independent ph\sician consultant determined that 'r. /aunâ&#x20AC;&#x2122;s disabilit\ was due 35 to his wrist inMur\ and 65 to his thumb condition and the subsequent surJer\. $;$ (quitable concluded that 'r. /aun was not eliJible Ior reclassiÂżcation because, at the time oI his accident, he was alread\ receivinJ total disabilit\ beneÂżts Ior a sickness Irom which he had not recovered.

7he *eorJia &ourt oI $ppeals held that 'r. /aun was not entitled to accident disabilit\ beneÂżts, because the polic\ unambiJuousl\ provided that â&#x20AC;&#x153;total disabilit\ caused or contributed to b\ sickness or disease will not be considered accident total disabilit\,â&#x20AC;? but must be considered sickness disabilit\. 'r. /aun contended that an issue oI Iact e[isted as to whether his disabilit\ resulted solel\ Irom his wrist inMur\. +owever, 'r. /aunâ&#x20AC;&#x2122;s testimon\ showed that, while he perceived his wrist inMur\ to be â&#x20AC;&#x153;more disablinJâ&#x20AC;? than his thumb condition, this characteri]ation implied that his thumbs still contributed to his disabilit\. 7hus, the court oI appeals aIÂżrmed the trial courtâ&#x20AC;&#x2122;s Jrant oI summar\ MudJment.

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*roup Policies ,ssueG to 2ut oI State Corporations 9aliG anG (nIorceaEle without Prior D2, ApproYal Youngblood v. Metropolitan Life Ins. Co., 8 S Dist /(;,S : D 1 C 2ct

<ounJblood was a participant in an (5,S$ plan that provided liIe and accidental death insurance beneÂżts to emplo\ees and their dependents. <ounJbloodâ&#x20AC;&#x2122;s dependent husband died Irom inMuries sustained while pilotinJ an aircraIt that crashed.

0et/iIe paid <ounJbloodâ&#x20AC;&#x2122;s liIe insurance claim but denied her claim Ior accidental death beneÂżts, based on the planâ&#x20AC;&#x2122;s e[clusion â&#x20AC;&#x153;Ior an\ loss caused or contributed to b\ â&#x20AC;Ś an\ incident related to â&#x20AC;Ś travel in an aircraIt as a pilot â&#x20AC;Ś.â&#x20AC;? $lthouJh the Iacts surroundinJ the death oI <ounJbloodâ&#x20AC;&#x2122;s husband were not in dispute, <ounJblood Âżled suit in Iederal court, alleJinJ that the e[clusion was void and unenIorceable. <ounJblood claimed that the e[clusion was not in eIIect, and thus could not e[clude coveraJe, because it was on a Iorm that had not been approved b\ the 1orth &arolina 'epartment oI ,nsurance at the time oI the Iatal plane crash. ,n support oI her claim, <ounJblood relied on a 1orth &arolina statute that provides in pertinent part a ,t is unlawIul Ior an\ insurance compan\ licensed and admitted to

8

do business in this State to issue â&#x20AC;Ś an\ polic\, contract, or certiÂżcate â&#x20AC;Ś until the Iorms oI the same have been submitted to and approved b\ the &ommissioner, and copies Âżled in the 'epartment â&#x20AC;Ś. b With respect to Jroup and blanket accident and health insurance, Jroup liIe insurance, and Jroup annuit\ policies issued and delivered to a trust or to an association outside of this State and coverinJ persons resident in this State, the Jroup certiÂżcates to be delivered or issued Ior deliver\ in this State shall be Âżled with and approved b\ the &ommissioner pursuant to subsection a oI this section.

1.&. *en. Stat. Â&#x2020; 5 3 50 emphasis added . &itinJ subsection b oI this statute, <ounJblood arJued that the e[clusion was required to be approved in 1orth &arolina beIore the Jroup certiÂżcate could be issued to participants and beneÂżciaries in the state.

7he court disaJreed, notinJ â&#x20AC;&#x153;that b\ its terms subsection b applies onl\ to Âľa trust or â&#x20AC;Ś association outside oI this State,â&#x20AC;&#x2122;â&#x20AC;? and the emplo\er here was neither. 5ather, the emplo\er

was an 2hio corporation, and the Jroup polic\ was issued in 2hio.

3laintiII also arJued that the lanJuaJe oI subsection a required 1orth &arolina '2, approval whenever an insurance certiÂżcate is issued to a 1orth &arolina resident. â&#x20AC;&#x153;7he problem with this arJument,â&#x20AC;? accordinJ to the court, â&#x20AC;&#x153;is that 0et/iIe issued its polic\ . . . in 2hio, not to 3laintiII in 1orth &arolina.â&#x20AC;? <ounJbloodâ&#x20AC;&#x2122;s broad interpretation would appl\ to all certiÂżcates issued to a 1orth &arolina resident Ior all Jroup policies. &onstruinJ the statute so broadl\, however, â&#x20AC;&#x153;would completel\ swallow >subsection b @ and thus make >it@ a useless nullit\,â&#x20AC;? the court said. â&#x20AC;&#x153;>,@I the *eneral $ssembl\ had intended that subsection b

appl\ to corporations, it would have included the word â&#x20AC;&#x2DC;corporationsâ&#x20AC;&#x2122; in the lanJuaJe thereoI.â&#x20AC;?

7he court Jranted 0et/iIeâ&#x20AC;&#x2122;s motion Ior summar\ MudJment, holdinJ that â&#x20AC;&#x153;0et/iIe Iull\ complied with all procedural and substantive requirements oI (5,S$ in reachinJ the decision to den\ accidental death >beneÂżts@.â&#x20AC;?

Releases oI (R,SA Claims (ntereG into .nowinJl\ AnG 9oluntaril\ Are %inGinJ on )ormer (mplo\ees Bacon v. Stiefel Laboratories, Inc., 8 S Dist /(;,S S D )la 2ct

7hree Iormer emplo\ees oI StieIel /aboratories Âą 3alakovich, 7eller, and Finnert\ Âą sued Ior breach oI Âżduciar\ dut\ and securities Iraud. (ach oI them previousl\ had siJned a Jeneral release oI all claims aJainst their emplo\er when receivinJ either a bonus or severance beneÂżts. $s Iramed b\ the Iederal district court, â&#x20AC;&#x153;7he issue beIore the &ourt >was@ whether the *eneral 5eleases siJned b\ 3laintiIIs 3alakovich, 7eller, and Finnert\ >were@ enIorceable to release the claims asserted b\ them in this case.â&#x20AC;?

7he court anal\]ed the enIorceabilit\ oI the releases siJned b\ two oI the plaintiIIs, 3alakovich and 7eller, under the knowinJ and voluntar\ standard applied to releases oI (5,S$ claims. $s the court e[plained, &ourts in the (leventh &ircuit consider si[ Iactors in determininJ whether a release oI Iederal statutor\ claims was knowinJ and voluntar\ the plaintiIIâ&#x20AC;&#x2122;s education and business e[perience 2 the amount oI time the plaintiII had to consider the aJreement beIore siJninJ it 3 the clarit\ oI the aJreement 4 the plaintiIIâ&#x20AC;&#x2122;s opportunit\ to consult with an attorne\ 5 the emplo\erâ&#x20AC;&#x2122;s encouraJement or discouraJement oI consultation with an attorne\ and 6 the consideration Jiven in e[chanJe Ior the waiver when compared with the beneÂżts to which the emplo\ee was alread\ entitled.

7he court Iound that all si[ Iactors weiJhed in Iavor oI enIorcinJ the 3alakovich and 7eller releases. %oth 3alakovich and 7eller were educated, e[perienced business persons the\ had 45 da\s to consider their respective releases and consult

with an attorne\ the\ were advised in writinJ to consult with an attorne\ and, in Iact, were represented when the\ siJned their respective releases both releases were clear and unambiJuous reJardinJ the Jeneral nature oI the release both plaintiIIs acknowledJed in writinJ that the\ knowinJl\ and voluntaril\ released all claims and both plaintiIIs received valuable consideration to which the\ were not otherwise entitled.

3alakovich and 7eller arJued that their releases were not enIorceable as a result oI (5,S$â&#x20AC;&#x2122;s e[culpation clause, 2 due to application oI (5,S$â&#x20AC;&#x2122;s anti alienation clause, and 3 because the\ were not separatel\ neJotiated or supported b\ separate consideration.

7he court reMected each oI these arJuments.

First, with respect to (5,S$â&#x20AC;&#x2122;s e[culpation clause, 29 8.S.&. Â&#x2020; 0, neither release purported to aIIect Iuture claims under (5,S$. â&#x20AC;&#x153;7hus,â&#x20AC;? the court said, â&#x20AC;&#x153;this arJument >was@ not relevant to an\ release in this case.â&#x20AC;?

Second, reJardinJ the arJument that the releases should not be enIorced due to (5,S$â&#x20AC;&#x2122;s anti alienation clause, 29 8.S.&. Â&#x2020; 056 d

, the court noted that this arJument was precluded b\ Kennedy v. Plan Admin. for DuPont Savings & Investment Plan, 555 8.S. 2 5 2009 . â&#x20AC;&#x153;,n .enned\,â&#x20AC;? the court said, â&#x20AC;&#x153;the Supreme &ourt held that (5,S$â&#x20AC;&#x2122;s anti alienation provision does not appl\ to the waiver or release oI riJhts to vested beneÂżts under an (5,S$ Joverned plan rather, it prevents the transIer or assiJnment to a third part\ oI an enIorceable riJht aJainst the (5,S$ plan Ior the pa\ment oI beneÂżts to that third part\.â&#x20AC;?

7hird, the court reMected the arJument that (5,S$ releases must

be separatel\ neJotiated or supported b\ separate consideration in order to be enIorceable. ,nstead, the court noted that a â&#x20AC;&#x153;number oI courtsâ&#x20AC;? have reMected those arJuments and â&#x20AC;&#x153;have held that a Jeneral release oI all claims Jenerall\ includes all (5,S$ claims, even iI (5,S$ is not speciÂżcall\ mentioned and 2 a release oI (5,S$ claims which is included as part oI a Jeneral release need not be separatel\ barJained Ior or supported b\ separate consideration.â&#x20AC;?

0oreover, the court was persuaded b\ the Iact that 3alakovich and 7eller had not returned or tendered back the consideration the\ received Ior their releases, which in turn ratiÂżed the releases. (ven iI the plain lanJuaJe oI the contracts had not required return oI consideration, which each release e[pressl\ did, the court Iound that â&#x20AC;&#x153;Jeneral contract law provides that 3laintiIIsâ&#x20AC;&#x2122; Iailure to return all monies paid to them Ior the releases prevents them Irom attemptinJ to invalidate the release aJreements.â&#x20AC;?

7he third plaintiII, Finnert\, siJned his Jeneral release beIore his claims Ior breach oI Âżduciar\ dut\ and securities Iraud arose. $s a result, the court held that Finnert\â&#x20AC;&#x2122;s claims were not barred because â&#x20AC;&#x153;>t@he law is clear that Jeneral releases cannot bar breach oI Âżduciar\ dut\ claims that arise aIter the eIIective date oI the release,â&#x20AC;? and â&#x20AC;&#x153;b\ its terms, the Finnert\ 5elease is not a deIense to his securities Iraud claims.â&#x20AC;?

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Statutor\ Penalt\ RecoYeraEle 2nl\ Irom Plan AGministrator 1ot Irom Claims AGministrator Saylors v. Hartford, 8 S Dist /(;,S D S C AuJ

Sa\lors souJht to recover lonJ term disabilit\ beneÂżts under the $ver\ 'ennison /onJ 7erm 'isabilit\ 3lan and brouJht claims aJainst the plan, $ver\ 'ennison &orporation, and +artIord. Sa\lors alleJed that +artIord was the administrator oI the plan, and that +artIord Iailed to provide certain plan documents that she had requested.

Sa\lors souJht to recover statutor\ penalties under (5,S$, 29 8.S.&. Â&#x2020; 32 c . ,n rulinJ on the deIendantsâ&#x20AC;&#x2122; motions to dismiss, the court noted that plan administrators â&#x20AC;&#x153;have a dut\ to provide a plan summar\ and other documents to each participant upon request.â&#x20AC;? Sa\lors claimed that +artIord breached this obliJation b\ IailinJ to provide a complete cop\ oI the materials used b\ the deIendants to evaluate and den\ her claim. +owever, 29 8.S.&. Â&#x2020; 32 c onl\ applies to administrators desiJnated b\ the plan. 7he court pointed out that not all entities providinJ emplo\ee beneÂżts are â&#x20AC;&#x153;administratorsâ&#x20AC;?

under the statute. ,I no person is desiJnated in the plan documents as the plan administrator, then the plan sponsor is deemed to be the administrator. ,n that event, and absent a speciÂżc declaration in the plan documents, the court cannot inIer that an insurance compan\ pa\inJ beneÂżts under the plan occupies co administrator status. %ecause the plan did not desiJnate +artIord as the plan administrator, and because Sa\lors onl\ alleJed that â&#x20AC;&#x153;+artIord is the insurer and claims administrator oI the /7' 3lan,â&#x20AC;? the court Iound that +artIord was not the â&#x20AC;&#x153;administratorâ&#x20AC;? subMect to statutor\ penalties pursuant to 29 8.S.&. Â&#x2020; 32 c . +artIordâ&#x20AC;&#x2122;s motion to dismiss was thereIore Jranted.

0oreover, because Sa\lors did not alleJe that she had requested or Iailed to receive inIormation Irom the plan or Irom $ver\ 'ennison, the court Iound she had Iailed to state a claim Ior violation oI 29 8.S.&. Â&#x2020; 32 c as to the remaininJ deIendants.

De Facto Plan AGministrator Doctrine Does 1ot Appl\ to Claims Pa\inJ ,nsurer Castro v. Hartford Life and Accident Ins. Co., 8 S Dist /(;,S M D )la 2ct

$Iter her claim Ior (5,S$ lonJ term disabilit\ beneÂżts was denied, &astro sued +artIord, seekinJ beneÂżts and an administrative penalt\ Ior the Iailure to provide certain requested documents, includinJ copies oI +artIordâ&#x20AC;&#x2122;s internal claims Juidelines, traininJ manuals, and other procedures. +artIord souJht dismissal oI the penalt\ claim, assertinJ that the penalties authori]ed b\ 29 8.S.&. Â&#x2020; 32 c did not appl\ to the requested documents, and that it was not the â&#x20AC;&#x153;plan administratorâ&#x20AC;? and thus was not subMect to penalties under the statute.

7he Iederal district court aJreed that &astroâ&#x20AC;&#x2122;s â&#x20AC;&#x153;requests were Ior materials not reIerenced in section 024, and thereIore the\ do not Iall within the scope oI penalties under section 32 c Ior IailinJ to suppl\ them to plaintiII.â&#x20AC;?

SpeciÂżcall\, the court held that the documents did not constitute â&#x20AC;&#x153;other instruments under which the plan is established or operated.â&#x20AC;? 7he â&#x20AC;&#x153;plain te[t oI section 024,â&#x20AC;? the court wrote, â&#x20AC;&#x153;reIers onl\ to the Iormal leJal documents JoverninJ a plan, and does not reIer to claims related documents.â&#x20AC;?

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7he court also aJreed that +artIord was not liable Ior penalties, because it was not the â&#x20AC;&#x153;plan administrator.â&#x20AC;? ,n that reJard, the plan speciÂżcall\ desiJned the emplo\er, 3ubli[, as the plan administrator.

0oreover, the court reMected the claim that +artIord was nonetheless liable as the â&#x20AC;&#x153;de Iacto plan administratorâ&#x20AC;? because it was the decision maker on disabilit\ claims and because it possessed discretionar\ authorit\ under the plan. â&#x20AC;&#x153;7he (leventh &ircuit has onl\ â&#x20AC;&#x2DC;applied the de Iacto plan administrator doctrine to emplo\ers,â&#x20AC;&#x2122;â&#x20AC;? the court noted, quotinJ Oliver v. Coca Cola Co., 49 F.3d , 94 th &ir. 200 .

7hus, Ior e[ample, the (leventh &ircuitâ&#x20AC;&#x2122;s earlier decision in Rosen v. TRW, Inc., 9 9 F.2d 9 th &ir. 992 , oIten cited in support oI the de facto administrator doctrine, actuall\ stood â&#x20AC;&#x153;Ior the proposition that an emplo\er that establishes a plan and acts as the â&#x20AC;&#x2DC;de Iacto plan administratorâ&#x20AC;&#x2122; ma\ not shield itselI Irom liabilit\ as plan administrator b\ desiJnatinJ a sham entit\ in the plan document,â&#x20AC;? the court wrote. +ere, the court noted, there was â&#x20AC;&#x153;no evidence that 3ubli[ and +artIord /iIe are â&#x20AC;&#x2DC;alter eJosâ&#x20AC;&#x2122; and thereIore Rosen does not appl\.â&#x20AC;?

7reatinJ Ph\sicianÂśs 2pinion Ma\ %e DiscounteG :hen ,nconsistent or ContraGicteG E\ Specialists Scott v. Eaton Corp. Long Term Disability Plan, 8 S App /(;,S th Cir 1oY

Scottâ&#x20AC;&#x2122;s claim Ior disabilit\ beneÂżts under an (5,S$ plan sponsored b\ her emplo\er was approved in 99 . ,n 2004, aIter Scott had surJer\ to address the medical issue that Iormed the oriJinal basis oI her claim, (aton terminated the pa\ment oI disabilit\ beneÂżts Ior â&#x20AC;&#x153;insuIÂżcient documentation oI a Iunctional impairment that would preclude her Irom the Mob duties oI an\ occupation.â&#x20AC;?

Scott appealed the termination, and (aton reinstated the beneÂżts aIter an independent medical evaluation revealed a possible other basis Ior disabilit\ secondar\ to the surJer\.

2ver the ne[t several \ears, durinJ periodic reviews oI Scottâ&#x20AC;&#x2122;s eliJibilit\ Ior continued beneÂżts, she was diaJnosed with diIIerent potentiall\ disablinJ conditions Âą each oI which involved conĂ&#x20AC;ictinJ evidence. 'octors disaJreed as to diaJnoses oI reĂ&#x20AC;e[ s\mpathetic d\stroph\ and mental illness.

$Iter submittinJ the conĂ&#x20AC;ictinJ inIormation to an independent ph\sician reviewer, (aton concluded that Scott could perIorm sedentar\ work, and the pa\ment oI beneÂżts was terminated in 200 . 'urinJ the administrative appeal process, which involved two staJes, si[ diIIerent ph\sicians reviewed the claim.

7he\ each concluded that Scott could work, and the termination oI disabilit\ beneÂżts was upheld.

Scott then Âżled suit in Iederal court seekinJ reinstatement oI beneÂżts.

7he district court reversed (atonâ&#x20AC;&#x2122;s decision to terminate beneÂżts, ÂżndinJ that the compan\ abused its discretion b\ JivinJ inadequate weiJht to Scottâ&#x20AC;&#x2122;s treatinJ ph\sician, and b\ IailinJ to adequatel\ consider the impact oI Scottâ&#x20AC;&#x2122;s medication reJimen on her abilit\ to work. (aton appealed, and the Fourth &ircuit reversed, emphasi]inJ the deIerential nature oI the abuse oI discretion

standard oI review and holdinJ that (atonâ&#x20AC;&#x2122;s decision makinJ process was sound and its ultimate decision was supported b\ substantial evidence.

7he appellate court concluded that (aton adequatel\ considered the opinions oI Scottâ&#x20AC;&#x2122;s treatinJ ph\sician, but Jave them little weiJht because oI their inconsistenc\ and because man\ oI the opinions were not based on obMective evidence.

0oreover, the opinions oI the treatinJ ph\sician Âą characteri]ed b\ the appellate court as â&#x20AC;&#x153;a well meaninJ Iamil\ doctorâ&#x20AC;? Âą were contradicted b\ several specialists.

7he appellate court also ruled that the district court incorrectl\ concluded that (aton had iJnored Scottâ&#x20AC;&#x2122;s medication in concludinJ that she was able work.

A Message from the editors

Sanders &arter

.ent &oppaJe

$aron 3ohlmann

We continue to welcome \our Ieedback concerninJ ERISA and Life Insurance News. 3revious issues oI this newsletter are archived on the Âżrmâ&#x20AC;&#x2122;s website, www.smithmoorelaw.com. 7he\ ma\ be accessed b\ selectinJ the â&#x20AC;&#x153;Servicesâ&#x20AC;? tab on the openinJ webpaJe, Iollowed b\ â&#x20AC;&#x153;/iIe, +ealth, 'isabilit\ and (5,S$â&#x20AC;? and â&#x20AC;&#x153;3ublications.â&#x20AC;?

Contributors to this Issue

Dorothy Cornwell Matt Creech $tlanta, *$ *reensboro, 1&

Nikole Crow $tlanta, *$

Heather White &harlotte, 1&

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