BLAKE v. UNIONMUTUAL STOCK LIFE INS. CO., 906 F.2d 1525 (11th Cir. 1990)
MARLOWE BLAKE AND PAM BLAKE, PLAINTIFFS-APPELLANTS, v. UNIONMUTUAL STOCKLIFE INS. CO. OF AMERICA, DEFENDANT-APPELLEE.
No. 89-5334.United States Court of Appeals, Eleventh Circuit.
July 30, 1990.
Joel S. Perwin, Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin Perwin, Miami, Fla., for plaintiffs-appellants.
William J. Gallwey, III, Shutts Bowen, Miami, Fla., Peter J. Guffin, Asst. Counsel, Unionmutual Life Ins. Co., Portland, Me., for defendant-appellee.
Appeal from United States District Court for the Southern District of Florida.
Before FAY, Circuit Judge, RONEY[fn*], Senior Circuit Judge, and PITTMAN[fn**], Senior District Judge.
[fn*] See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.
[fn**] Honorable Virgil Pittman, Senior U.S. District Judge for the Southern District of Alabama, sitting by designation.
PER CURIAM:
[1] Maintaining that additional compensation of $33,269 is due under a group health insurance policy, Marlowe and Pam Blake brought a civil action pursuant to 29 U.S.C.A. § 1132(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (ERISA).[fn1] The district court held that the insurance company's responsibility for Pam Blake's medical bills, which were incurred for extensive psychiatric care related to a postpartum depression, a complication ofPage 1526
pregnancy, was limited under the policy's coverage of mental illness. The Blakes' claim that postpartum depression is covered under "the sickness," rather than "the mental illness," section of the policy, and that, in any event, they were entitled to a jury trial. We affirm.
[2] As to the claim to a jury trial under the Seventh Amendment, appellants concede that this Circuit has held that plaintiffs are not entitled to a jury trial under ERISA when the issue is whether it was arbitrary or capricious for benefits to be denied.Chilton v. Savannah Foods Industries, Inc., 814 F.2d 620
(11th Cir. 1987) (rejecting claim that a suit for benefits under29 U.S.C.A. § 1132(a)(1) should be tried to a jury); Howard v.Parisian, Inc., 807 F.2d 1560 (11th Cir. 1987) (stating that the former Fifth Circuit squarely held that plaintiffs in actions under 29 U.S.C.A. § 1132(a)(1)(B) are not entitled to trial by jury); Calamia v. Spivey, 632 F.2d 1235, 1237 (5th Cir. 1980), (following Wardle v. Central States, Southeast Southwest AreasPension Fund, 627 F.2d 820 (7th Cir. 1980), cert. denied,449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981)).
[3] Circuit courts dealing with the jury trial issue in ERISA-regulated plans have generally followed Wardle's
reasoning. Cox v. Keystone Carbon Co., 894 F.2d 647 (3rd Cir. 1990) (plaintiff's claim to Seventh Amendment jury trial dealt fatal blow by earlier decisions that section 502(a)(1)(B) claims are equitable in nature) petition for cert. filed, (U.S. Apr. 20, 1990) (No. 89-1721); Daniel v. Eaton Corp., 839 F.2d 263,268 (6th Cir.) (no right to a jury trial under § 502) (citing Crews v. Central States, 788 F.2d 332, 338 (6th Cir. 1986)), cert. denied, 488 U.S. 826, 109 S.Ct. 76,102 L.Ed.2d 52 (1988); Berry v. Ciba-Geigy, 761 F.2d 1003, 1006-07
(4th Cir. 1985) (no right to jury trial in termination of pension benefits); Katsaros v. Cody, 744 F.2d 270 (2d Cir.), cert.denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984); Inre Vorpahl, 695 F.2d 318 (8th Cir. 1982) (no jury trial required in cases under section 502). But cf. Stamps v. MichiganTeamsters Joint Council No. 43, 431 F. Supp. 745 (E.D.Mich. 1977); (claims under § 1132(a)(1)(B) legal rather than equitable);Gangitano v. NN Investors Life Insurance Co., 733 F. Supp. 342
(S.D.Fla. 1990) (constitutional right to jury trial exists in § 1132(a)(1)(B) action).
[4] The Blakes argue, however, that the change in the standard of review from arbitrary and capricious to de novo, made byFirestone Tire Rubber Co. v. Bruch, 489 U.S. 101,109 S.Ct. 948, 103 L.Ed.2d 80 (1989), converts the claim from an equitable claim to a breach of contract action, which entitles them to a jury trial under the Seventh Amendment.
[5] In our judgment, however, this argument cannot prevail. The nature of an action under section 502(a)(1)(B) is for the enforcement of the ERISA plan. Although the plaintiffs assert that they are claiming money damages, in effect they are claiming the benefits they are allegedly entitled to under the plan. Although here the medical treatment has been completed so that a money judgment would satisfy their demands, if the claimant were still under treatment, only an order for continuing benefits would be sufficient. This is traditionally equitable relief so that the cases relied upon by the appellants are not applicable.Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260
(1974) (the Seventh Amendment requires a jury trial where a statute creates legal rights and remedies enforceable in a action for damages in a court of law); Granfinanciera, S.A. v.Nordberg, ___ U.S. ___, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989) (if a statutory right is not closely intertwined with a federal regulatory program, and the right is legal in nature, then it carries the Seventh Amendment's guaranty of a jury trial).
[6] Thus we are constrained to follow the overwhelming precedent which has clearly determined that claims on medical insurance plans issued pursuant to ERISA are equitable in nature, and thede novo standard of review does not control the application of the Seventh Amendment. See Chauffeurs, Teamsters and Helpers,Local No. 391 v. Terry, 494 U.S. ___, 110 S.Ct. 1339,108 L.Ed.2d 519 (1990) (thePage 1527
right to a jury trial is determined by "the nature of the issues involved and the remedy sought").
[7] This decision makes it unnecessary to confront the alternate argument of defendant-appellee that because of the failure of the plaintiffs to offer sufficient evidence to prove their case, the district court would have been compelled to direct a judgment for the defendant even if a jury otherwise would be required.
[8] As to the argument that Pam Blake's postpartum treatment was covered by the "sickness" provisions of the policy, a review of the record reveals that the district court must be affirmed on the findings of fact and reasoning under the proper de novo
standard of review as reflected in its Memorandum Order attached hereto as an Appendix.
[9] AFFIRMED.
APPENDIX
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Marlowe and Pam Blake, Plaintiffs,
vs.
Unionmutual Stock Life Insurance Co. of America, Defendant.
Case No. 87-0543-CIV-SCOTT
MEMORANDUM ORDER
Plaintiffs, Marlowe and Pam Blake, seek recovery of
hospitalization and other medical expenses which Pam Blake
incurred following the birth of their child. Defendant,
Unionmutual Stock Life Insurance Co. of America, admits that Mrs.
Blake was at all times a beneficiary of the policy but contends
that it has paid her claims up to the limits of the policy. The
parties agree that there are two issues: one legal and one
factual. The legal issue involves which standard of review should
be applied in reviewing the insurer's actions. The factual issue
is whether the postpartum depression that Pam Blake suffered
after giving birth was a mental illness or a physically based
illness with psychiatric manifestations.
I.
Standard of Review
The Court has already ruled that Plaintiff's common law actions
have been preempted by the Employee Retirement Income Security
Act, 29 U.S.C. § 1002(1). See Pilot Life v. Dedeaux, 481 U.S. 41,
107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Defendant argues that
under ERISA the standard of review is an arbitrary and capricious
action. Plaintiffs argue that the standard should be the
traditional state law standard which states that where there is
an ambiguity, the interpretation of the policy favoring coverage
should be applied. We reject both contentions and proceed to the
merits on a de novo standard of review. Firestone Tire and
Rubber Company v. Bruch, 489 U.S. 101, 109 S.Ct. 948,
103 L.Ed.2d 80 (1989). The Court apologizes for the delay in entering
its decision, but we opted several months ago to postpone it
pending resolution of Bruch. The parties will recall that this
Court previously expressed our view that the arbitrary and
capricious standard was inconsistent with the underlying purpose
behind ERISA. Now, guided by the correct standard as enunciated
in Bruch, we proceed to decide the merits of this controversy.
II.
History of the Case
In 1984, Marlowe Blake was employed by the law firm of Wallace,
Engels, Pertnoy and Solowsky. As a benefit of his employment,
Marlowe and his wife Pam were insured for health and medical
benefits under an insurance policy issued by Unionmutual Stock
Life Insurance Company.
On August 13, 1984, Pam Blake gave birth to a healthy baby
girl. Three days later, the family returned to their home, where
Pam developed ill feelings toward the baby and herself. Pam
described her condition as feeling like jumping out of her skin;
she stated that she felt this heat in her body; and she felt
itchiness. Pam testified
Page 1528
that she was having bad thoughts about hurting the baby and
herself. The couple called Pam's general physician who
recommended that Pam drink a beer to help her relax.
Unfortunately, the ill feelings continued. On August 20, 1984,
Pam woke up and banged her head on the wall. The couple went to
her physician's office, where Pam acted like a caged tiger. That
same evening, Pam was admitted to Jackson Memorial Hospital where
she remained until September 25, 1984.
Pam was readmitted to Jackson in October, 1984 and remained
there until the end of December, 1984. After her December release
from Jackson, she continued to seek and receive treatment at
other hospitals. She spent two weeks at Highland Park and sought
treatment at Hollywood Memorial. Pam has been out of treatment
since January of 1988 and has received no medication since
January, 1987. Today, Pam and the baby are doing well and
enjoying a good relationship.
Unionmutual denies that it owes the Blakes any additional
medical benefits. It claims that it has paid up to the policy
limits set forth in Section I(2)(b)(iv) of the insurance
agreement. That section limits the amount of medical care
benefits for mental illness to thirty days confinement as an
inpatient in a hospital and $1,000 of treatment received as an
outpatient. Unionmutual has paid the Plaintiffs up to the mental
illness section's limitations. Mental illness is defined in the
policy as "any mental, nervous or emotional diseases or
disorders."
Plaintiffs argue that the Defendant applied the wrong section.
Plaintiffs claim that Pam's condition was a physically based or
caused illness and is covered by the "sickness" section of the
insurance agreement. Sickness is defined in the policy as an
"illness or disease. . . . It includes pregnancy unless excluded
elsewhere." Therefore, Plaintiffs claim that Pam's illness falls
within the sickness section; and Unionmutual owes Plaintiffs
$33,279.55 in unpaid medical bills.
Expert and treating psychiatrists and psychologists testified
about the nature of Pam Blake's illness. Plaintiffs' main
witnesses were Dr. Susan Moreno, treating psychiatrist at Jackson
Memorial Hospital, and Dr. James Alexander Hamilton, a
psychiatrist, who has spent time studying the causes and symptoms
of postpartum psychoses. Defendant also relied upon the testimony
of Moreno and Hamilton and called its own expert, Dr. Pinosky,
another psychiatrist.
III.
De Novo Review
Plaintiffs first contend that irrespective of whether this
illness is organically based, the cause of the illness was
pregnancy. As noted above, pregnancy is included in the sickness
section. Because the policy equates pregnancy with sickness,
Plaintiffs argue that all that need be shown is that the
pregnancy and ensuing childbirth caused Pam Blake's illness;
therefore, her postpartum depression was a complication of
pregnancy and is included in the sickness section.
Even prior to Mrs. Blake's childbirth and subsequent
hospitalization, she described a period of ten years in her life
where she would stuff food into her mouth — cake or bread — chew
it and then spit it out. This occurred approximately six nights
per week. Mrs. Blake paid $15 to $20 per week to meet with a
women's group to discuss diets and images. Mrs. Blake also went
to a state certified social worker for group gestalt. Gestalt was
described as a process whereby an individual sits in one chair,
puts their feelings into another chair and talks to it.
Following the birth of her child, Dr. Charles Kram performed a
psychological evaluation of Pam Blake while she was a patient at
Jackson Memorial Hospital. Kram found that Mr. Blake had
"longstanding personality problems" prior to her hospitalization
at Jackson Memorial Hospital. Dr. Kram also found that Pam had
been depressed for many years and that she felt inadequate. Dr.
Moreno, a treating physician of Pam's at Jackson, agreed
Page 1529
with both of these findings. Dr. Kram further stated, "this
patient may well have been experiencing a precarious adjustment
balance for a period of time extending well back into her
adolescence. . . . The responsibilities of motherhood may have
appeared for the patient as the proverbial last straw." These
findings and the past history of Mrs. Blake demonstrate that the
birth of the child was not the sole cause of Mrs. Blake's
illness. We agree with Dr. Kram's finding that "motherhood may
have appeared as the proverbial last straw."
In support of the argument that all the Plaintiffs need show is
a covered sickness caused the ensuing mental treatment, they cite
a New York case. In Prince v. The United States Life Insurance
Company, 42 Misc.2d 410, 248 N.Y.S.2d 336 (S.Ct. 1964), aff'd,
23 A.D.2d 723, 257 N.Y.S.2d 891 (1965); aff'd, 17 N.Y.2d 742,
270 N.Y.S.2d 209, 217 N.E.2d 33 (1966), the New York Court of
Appeals affirmed a lower court's decision which held that
psychiatric treatment following the loss of an eye was an "injury
or sickness" within the terms of that policy. We find this case
and its reasoning less than persuasive, especially when Mrs.
Blake's prior mental history is considered. For these reasons, we
reject this contention.
Plaintiffs next argue that if postpartum psychosis is not a
complication of pregnancy, then it is a physical illness with
psychiatric symptoms. They contend that an organically based
illness is not a mental illness within the terms of the policy,
but rather is a sickness. We again disagree.
Dr. Moreno diagnosed Pam as suffering from major depression,
single episode with melancholia. Dr. Moreno further stated, "I
felt [Pam Blake] was suffering from postpartum depression which
we call major depression, single episode with psychotic
features." When asked whether Pam Blake was suffering from a
mental illness, Dr. Moreno answered, "yes." Dr. Moreno then
explained her answer as meaning "a physical illness, with
manifestations of a psychiatric nature."
In speaking of physical illness, Dr. Moreno is referring to
imbalances in serotonin and neopinephrine or perhaps hormonal
imbalances as causing Mrs. Blake's illness. Neither Pam Blake's
serotonin and neopinephrine levels nor her hormonal levels were
ever measured so far as this Court is aware. While Dr. Moreno did
state that testing the serotonin and neopinephrine levels is
difficult, she did not state why Mrs. Blake's hormonal levels
were never measured. Dr. Moreno's testimony simply failed to
prove a physical illness caused Mrs. Blake's psychiatric
hospitalization.
Dr. Hamilton testified generally about Pam Blake's symptoms
marching in step with known changes in physiology that occur
after childbirth. For example, he spoke of the brief latent
period between delivery and the onset of the disease; that
patients suffering from postpartum psychosis generally have a
good prognosis; that electroconvulsive therapy while frequently
effective in other forms of psychoses is frequently ineffective
here; and finally he testified concerning the hormonal changes in
estrogen and progesterone which occur after childbirth.
First, we observe that Dr. Hamilton generated his opinions
nearly four years after Pam gave birth to the child, and
significantly, a day before the trial began. Moreover, even if
her symptoms did march hand in hand with known changes in
physiology, the Court does not find such medical generations
sufficiently persuasive to show an organic mental disorder in
this case. While we are happy to note that today Pam Blake is
doing fine, the fact that postpartum patients generally have a
good prognosis does not prove an organic disorder.
Dr. Moreno stated that Pam Blake responded well to the
electroconvulsive therapy she received, a statement which would
contradict Dr. Hamilton's view that electroconvulsive therapy
would be ineffective for an organic disorder because it (ECT)
would fail to clear up the underlying problem (hormonal
imbalance). While Pam did relapse from her ECT treatment, Dr.
Moreno testified that it is not uncommon for people who receive
ECT for depression at other
Page 1530
times in their lives to also relapse. The fact the postpartum
depression may be self-limiting does not convince us that Pam
Blake suffered an organic mental illness.
Finally, while hormonal changes may be an important cause of
postpartum depression, no proof has been offered in this case to
show that the levels in Mrs. Blake were abnormal following
childbirth. Dr. Hamilton, in a letter dated November 27, 1987,
stated "the [Defendant's] motion for summary judgment selects a
very strong point from Defendant's expert, Pinoski: the unproven
possibility that hormonal imbalances may have been associated
with Mrs. Blake's condition does not change the fact that she was
suffering from a mental disorder — we cannot deny the latter —
all we could say at best is that there is substantial information
to the effect that this mental disorder is one which is caused by
organic changes, which in turn follow childbearing."
One test that was performed on Mrs. Blake was a cortisol
suppression test. It showed her serum cortisol levels to have
reached 33. Any reading above 5 is considered by Dr. Moreno of
Jackson Memorial Hospital to be abnormal. An abnormal serum
cortisol level is not thought to be the cause of any mental
illness, but rather abnormal levels are found in a variety of
mental illnesses, including depression and bulimia. This test
does not convince us that Mrs. Blake's illness was an organic
illness with psychiatric manifestations.
Finally, we agree with Defendant's expert, Dr. Pinosky, that
Mrs. Blake suffered from a mental disorder following her
pregnancy. During Dr. Pinosky's twenty-five years of practice as
a licensed psychiatrist, he has diagnosed more than 100
postpartum psychotic patients. Dr. Pinosky's opinion was that the
policy's definition of mental illness as any mental, nervous or
emotional diseases or disorders comports with Mrs. Blake's
condition.
Dr. Pinosky placed great importance on the finding that Mrs.
Blake had suffered from an eating disorder known as bulimia,
since about the age of fourteen. Dr. Pinosky testified that
bulimia is a mental disorder and those who suffer from it have an
inordinately high association of developing a major effective
disorder later in life. Dr. Pinosky contradicted Dr. Hamilton's
testimony that postpartum depression tends to be self-limiting
and therefore distinguishable from other mental disorders. He
opined that individuals suffering from depression improve in
general, not just those who suffer from postpartum psychoses.
The Court concurs with Dr. Pinosky that Mrs. Blake was not
suffering from physical illness with psychiatric manifestations.
We agree with Dr. Pinosky that Mrs. Blake suffered from a mental
illness as defined in the terms of the insurance agreement.
In summary, Plaintiffs ask the Court not to consider the
treatment Mrs. Blake received, but instead to look to the causes
of the illness. Because of Plaintiffs' failure to prove an
organic causation for this illness, we find that the treatment
Mrs. Blake received is only more convincing proof that she
suffered a mental illness within the terms of the policy. All of
the hospitalizations of Mrs. Blake were in psychiatric units. She
was treated primarily by psychiatrists receiving well recognized
psychiatric treatment, including individual psychotherapy,
psychoactive drug therapy, electroconvulsive therapy and
participation in group sessions. To borrow from a euphuism, "if
it looks like a duck, walks like a duck, quacks like a duck, then
it's probably a duck." Here, no physician rendered Pam Blake
treatment different than that rendered to other patients
suffering from other forms of mental disorder. Her past medical
history is consistent with such treatment. To ignore such
treatment would be to ignore the realities of the evidence in
favor of sympathy. Our oath prevents us from such a course.
IV.
Conclusion
For these reasons, the Court concludes that the Plaintiffs have
failed to demonstrate that Pam Blake suffered an organic mental
illness under our de novo review. Indeed, we find that she
suffered a "mental
Page 1531
illness" within the terms of the policy; and, accordingly
Unionmutual was correct in applying the limitations of the mental
illness section to Plaintiffs' claims. Accordingly, we will enter
judgment for the Defendant.
DONE and ORDERED in Chambers, at Miami, Florida, this 10th day
of March, 1989.
/s/ Thomas E. Scott
_______________
THOMAS E. SCOTT
UNITED STATES
DISTRICT JUDGE
Copies mailed to:
Michael S. Olin, Esquire
Robert A. Wainger, Esquire
[fn1]
§ 1132. Civil enforcement (a) Persons empowered to bring a civil action
A civil action may be brought —
(1) by a participant or beneficiary —
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;