United States District Court, D. Massachusetts
ROBIN J. TROVATO, Plaintiff,
PRUDENTIAL INSURANCE COMPANY OF AMERICA, RAPID7 EMPLOYEE TERM LIFE BASIC AND OPTIONAL PLANS, and RAPID 7 LLC, Defendants.
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE.
Robin J. Trovato (“Trovato”) brings claims
against Defendants Prudential Insurance Company of America
(“Prudential”), Rapid7 Employee Term Life Basic
and Optional Plans (“Rapid7 Plans”), and Rapid7
LLC (“Rapid7”) arising out of a benefit plan
provided for the employees of Rapid7. Trovato brings four
claims: Count I, a claim for benefits due under the plan
against Prudential and Rapid7 Plans; Count II, a claim for
breach of fiduciary duty against Rapid7; Count III, a claim
for reformation against Prudential and Rapid7 Plans; and
Count IV, a claim for attorneys' fees. D. 1 at 8-15.
Prudential moves to dismiss Count III. D. 22. For the
foregoing reasons, the Court ALLOWS in part and DENIES in
part Prudential's motion to dismiss Count III.
Standard of Review
evaluating a motion to dismiss, “[n]on-conclusory
factual allegations in the complaint must  be treated as
true.” Ocasio-Hernandez v. Fortuno-Burset, 640
F.3d 1, 12 (1st Cir. 2011). The Court is required to
“view the facts of the complaint in the light most
favorable to the plaintiffs, and to resolve any ambiguities
in their favor.” Id. at 17.
following facts are taken from the complaint, D. 1, and
accepted as true for the purposes of considering the motion
to dismiss. Trovato is the executrix and personal
representative of the late Richard Trovato (“Mr.
Trovato”). D. 1 ¶ 1. Rapid7 hired Mr. Trovato in
February 2014. D. 1 ¶ 8. As an employee, Trovato was a
“participant” in the life insurance plan
(“Plan”) of Rapid7 Plans. D. 1 ¶¶ 10,
2. Rapid7 Plans was the statutory Plan Administrator, but
shared administrative duties with Prudential. D. 1
¶¶ 18-19. The Plan provided life insurance coverage
of no less than $501, 000 to Mr. Trovato in the event of his
death. D. 1 ¶ 14. Trovato was the designated beneficiary
of Mr. Trovato's life insurance benefit under the Plan.
D. 1 ¶ 1. In late 2015 and early 2016, Mr. Trovato
became very ill. D. 1 ¶¶ 23-26. At some date in
2016, Rapid7 asked Mr. Trovato not to come to the office. D.
1 ¶ 27. In a letter dated March 31, 2016, Rapid7
tendered a separation agreement to Mr. Trovato. D. 1 ¶
28. That letter stated that it “sets forth and confirms
the understanding between you and Rapid7 . . . relating to
the termination of your employment with [Rapid7] effective
June 24, 2016.” D. 1 ¶ 28. Mr. Trovato's
counsel engaged in negotiations with Rapid7 regarding the
separation agreement. D. 1 ¶ 29. No. final signed
agreement is alleged to exist. Mr. Trovato passed away on May
26, 2016. D. 1 ¶ 32. Thereafter, Trovato contacted
Prudential and the company advised her to apply for life
insurance benefits of $501, 000. D. 1 ¶ 33. Prudential
denied her claim on the basis that Mr. Trovato's coverage
under the Plan had ended on April 21, 2016 and that Mr.
Trovato had failed to convert his coverage under the Plan
into a different type of coverage. D. 1 ¶ 34. Trovato
appealed Prudential's decision and her appeal was denied.
D. 1 ¶¶ 35-38.
filed her complaint on August 2, 2017. Prudential has now
moved to dismiss Trovato's complaint. D. 22. The Court
heard argument on the motion on December 20, 2017, D. 38, and
took the motion under advisement.
contends that Trovato has failed to allege facts sufficient
to state a claim for reformation of the terms of the plan
under the Employee Retirement and Income Security Act
(“ERISA”), which the parties agree governs the
Plan at issue. D. 23 at 2; D. 28 at 2. In the complaint,
Trovato contends that she is entitled to judicial reformation
of the Plan terms, under 29 U.S.C. § 1132(a)(3), as an
equitable remedy for a breach of fiduciary duty by Rapid7
Plans and Prudential in providing Trovato with false or
misleading information. D. 1 at 13-14. As alleged by Trovato,
Prudential provided false or misleading information by:
first, failing to send written notice to Mr. Trovato that he
was entitled to convert his rights under the Plan; second,
advising Trovato to apply for benefits under the plan; and
third, failing to “fully investigate the claim before
denying it, including gathering information that Rapid7 LLC
had extended coverage until June 24, 2016.” D. 1 at
1132(a)(3) provides that a civil action may be brought by a
beneficiary to “(A) to enjoin any act or practice which
violates any provision of this subchapter or the terms of the
plan, or (B) to obtain other appropriate equitable relief (i)
to redress such violations or (ii) to enforce any provisions
of this subchapter or the terms of the plan.” 29 U.S.C.
§ 1132(a)(3). This provision empowers a district court,
in the context of suits by a beneficiary against a plan
fiduciary, to impose remedies in accordance with the
traditional equitable powers of the court. CIGNA Corp. v.
Amara, 563 U.S. 421, 442 (2011). These remedies may
include reformation of the contract “to reflect the
mutual understanding of the contracting parties where
‘fraudulent suppression[s], omission[s], or
insertion[s]' . . . ‘materially . . . affected'
the ‘substance' of the contract.”
Id. at 443 (citation omitted) (alterations in
original). Equitable remedies may also include imposing a
“surcharge” to make a beneficiary “whole
following a trustee's breach of trust” which
actually harmed the beneficiary. Id. at 444.
first contends that providing notice of conversion rights is
a ministerial rather than a fiduciary act and thus cannot be
the basis of a claim under Section 1132(a)(3). D. 23 at 6-8.
In Livick v. The Gillette Co., 524 F.3d 24, 29 (1st
Cir. 2008), the First Circuit explained that “[u]nder
ERISA, a fiduciary is defined functionally: a party is a
fiduciary ‘to the extent' that he or she exercises
discretion over the management of the plan or its funds or
over its administration.” Id. (quoting
Pegram v. Hendrich, 530 U.S. 211, 226 (2000)). This
functional analysis is important because “in cases
alleging breach of ERISA fiduciary duty, the threshold
question is . . . whether that person was acting as a
fiduciary (that is, was performing a fiduciary function) when
taking the action subject to complaint.” Id.
(citation omitted). For example, in Brenner v. Metro.
Life Ins. Co., No. CIV.A. 11-12096-GAO, 2015 WL 1307394,
at *8, *11 (D. Mass. Mar. 23, 2015), this Court concluded
that failing to provide notice of a conversion option was an
administrative duty rather than a fiduciary function because
it is a nondiscretionary act, and, on that basis, granted
summary judgment to the entity that performed administrative
functions but was not the statutory Plan Administrator (as is
true of Prudential in this case). Trovato cites Keith v.
Metro. Life Ins. Co., No. H-15-1030, 2017 WL 1026008
(S.D. Tex. March 15, 2017), in arguing that the failure to
provide notice of the conversion option may have been a
fiduciary act. But in Keith, the court agreed that
the mere failure to provide notice of a conversion option was
a ministerial act, but found that MetLife may have been
acting as a fiduciary because it filed a claim on the
beneficiary's behalf and sent confusing or misleading
letters to the beneficiary. Id. at *4. Such are not
the allegations here. Moreover, even if Prudential was
legally obligated by state law to send the conversion notice,
as Trovato contends, D. 28 at 7-11, so long as sending that
notice was a ministerial rather than fiduciary act, its
failure to do so cannot be the basis for an equitable claim
for relief based on a breach of fiduciary duty. Trovato also
contends that, as Rapid7 Plan's agent, Prudential can be
considered a fiduciary to the extent that it performed
fiduciary acts. D. 28 at 8. But, again, because the act was
not fiduciary, Prudential cannot be held liable for a breach
of fiduciary duty in failing to perform the act.
next contends that advising a participant to apply for
benefits is a similarly ministerial act. The complaint states
only that Trovato was “advised by Prudential to apply
for life insurance benefits in the amount of $501,
000.00.” D. 1 ¶ 33. Prudential cites
Brenner for the proposition that advising
participants of their rights and options under a plan is not
a fiduciary function. D. 23 at 8. The complaint, however,
alleges that Prudential did more than inform Trovato that she
had the option of applying for benefits. The complaint
alleges that Prudential advised Trovato to apply for
benefits, and Brenner stated that “giving
advice about future benefits” is a fiduciary function.
Brenner, 2015 WL 1307394 at *8. Nothing in the
record indicates that, if Prudential had advised Trovato to
apply for benefits, it would have been a nondiscretionary
act. Prudential further argues that Trovato has not alleged
facts sufficient to state a claim for a breach of fiduciary
duty because, regardless of whether Prudential intended to
pay the claim, Trovato would be required to file a claim to
exhaust the administrative remedies available to her before
filing suit in federal court, and thus the advice that
Prudential purportedly gave her did not harm her. D. 23 at 8;
see Madera v. Marsh USA, Inc., 426 F.3d 56, 61 (1st
Cir. 2005) (stating that “[b]efore a plaintiff asserts
an ERISA claim . . . [she] must exhaust [her] administrative