Synergy Blog

1024(b)(4) – Send It To The Right Place!

In Allena Burge Smiley v. Hartford Life and Accident Insurance Company, et. al, No. 15-10056 (11th Cir. 2015), the Eleventh Circuit reiterated what Synergy regularly advises clients to do regarding the statutory document request pursuant to 29 U.S.C. 1024(b)(4) – send it to the right place! The first step in properly defending against an asserted subrogation or reimbursement claim from an ERISA plan is making a request for documents pursuant to 29 U.S.C. 1024(b)(4). On July 17, 2015, the Eleventh Circuit in Allena Burge Smiley v. Hartford Life and Accident Insurance Company, et. al, No. 15-10056 (11th Cir. 2015), reaffirms the rule that unless this statutory request is sent to the “plan administrator” no penalties will be assessed.

A proper 29 U.S.C. 1024(b)(4) request is of the utmost importance for two (2) reasons: to obtain the necessary documents to evaluate the strength of the ERISA plan’s recovery rights, and to exert pressure by means of 29 U.S.C. § 1132 (c) (1) (B) penalties.

29 U.S.C. § 1024(b)(4) – The administrator shall, upon written request of any participant or beneficiary, furnish 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.

29 U.S.C. § 1132(c) – Any administrator who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish … within 30 days after such request may … be personally liable … in the amount of up to $100 a day.

29 C.F.R. § 2575.502c-1 – The civil monetary penalty established by … ERISA is hereby increased from $100 a day to $110 a day.

As the Eleventh Circuit found in Smiley, despite arguments that the third-party administrator was a de facto plan administrator, the plan language of the ERISA statute places these responsibilities on the plan administrator alone, not its agents. One bright spot for the plaintiff’s bar is the Court’s affirmation that in order to obtain penalties (where the request was sent to the correct party) there is no need for the plaintiff to demonstrate “prejudice, bad faith, [or] harm” in order to obtain penalties, Byars v. Coca-Cola Co., 517 F. 3d 1256 (11th Cir. 2008); Daughtrey v. Honeywell, Inc. 3 F.3d 1488, 1494 (11th Cir. 1993).

TESTIMONIALS

"I just want to thank Synergy for their great work in getting a health insurance lien resolved. The health insurance company refused to reduce their lien a penny from a motorcycle accident involving my client who was not wearing a helmet, a fact that would have hurt our award in front of a jury. Synergy put tremendous pressure on this company, and after months of bombarding this insurance company with statutory requests and threats, they were able to get them to give in and reduce the lien significantly. The cost was minimal in relation to the hard work they put in, and the savings my client received. Client was very happy, and it allowed me to close out a case that I had resolved over 6 months before. Keep them in mind if you are dealing with a smug insurance adjuster who felt confident he would not have to reduce a lien, like I was dealing with. Thank you very much Synergy."

Jeffrey A. Adelman, Esq.
Adelman & Adelman, P.A.

"Whenever I have turned to Synergy, their team has always been there for our firm and our clients. They always take the time to answer all our clients’ questions and provide quick, accurate and reliable information so they can make an informed decision regarding structured settlements. With Synergy on our side, we know that our clients are getting the best service and the best structured settlements."

Troy Rafferty
Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor

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