The Sixth Circuit Court of Appeals recently joined a number of other appellate courts in adopting the “clear notice” standard under which a written request for copies of benefit plan documents subject to the Employee Retirement Income Security Act of 1974 (ERISA) must provide clear notice to the plan of the desired information. Specifically, in Cultrona v. Nationwide Life Ins. Co., a participant’s widow sought benefits under an accidental death and dismemberment policy for her husband. The plan denied the claim and the widow appealed. As part of her appeal, the widow requested the administrative record and documents supporting the plan’s decision. The plan denied the appeal and provided certain plan information, but delayed for 162 days before sending a copy of the insurance policy. Citing ERISA § 104(b)(4), the district court upheld the denial but awarded the widow $8,910 ($55 per day) for the delay in furnishing the insurance policy. ERISA § 104(b)(4) requires plan administrators to provide a copy of the “latest updated summary plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated” within thirty days of any written request from a plan participant or beneficiary. Failure to provide the documents in a timely manner could lead to an assessment of penalties of up to $110 per day for the failure. In upholding the district court’s decision to assess penalties for the late documents, the Sixth Circuit applied the “clear notice” standard and noted that even though the widow did not specifically request the insurance policy, the plan should have known that the insurance policy was “the key document” supporting the denied appeal. Plan sponsors that receive a request for benefit plan documents would be wise to review such requests carefully and interpret them broadly. Even if a document is not specifically requested, the document may need to be provided in order to avoid any penalties.
