Homer Ira Lockhart v. Blue Cross Blue Shield of Tennessee

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13027
Non-Argument Calendar
________________________
D.C. Docket No. 4:04-cv-00006-MSH
HOMER IRA LOCKHART,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
BLUE CROSS BLUE SHIELD OF TENNESSEE,
Memphis,
BLUE CROSS BLUE SHIELD OF TENNESSEE,
Chattanooga,
SOUTHERN HEALTH PLAN INC.,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(January 17, 2013)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
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Homer Lockhart appeals pro se the judgment in favor of Blue Cross Blue
Shield of Tennessee in Memphis (Blue Cross of Memphis), its successor entity,
Blue Cross Blue Shield of Tennessee in Chattanooga (Blue Cross of Tennessee),
and its subsidiary, Southern Health Plan Inc., and against Lockhart’s amended
complaint that the companies violated the Employee Retirement Income Security
Act of 1974. 29 U.S.C. § 1132. We affirm.
In 1996, Lockhart obtained continuation health insurance benefits, under the
Consolidated Omnibus Budget Reconciliation Act, from his former employer,
Burkeen Construction Company. Lockhart retained his coverage through Burkeen
when the company transferred its group insurance policy from another insurer to
Blue Cross of Memphis. Burkeen failed to notify Blue Cross of Memphis that
Lockhart had continuation coverage instead of health benefits as an active
employee, but when the 18-month period for his continuation coverage expired in
May 1998, Lockhart purchased an individual health insurance policy from another
insurance company. In December 1998, when Blue Cross of Memphis learned that
Lockhart had lost his job and relocated to Georgia, the insurance company advised
Lockhart to contact Blue Cross Blue Shield of Georgia, “which serv[ed] the area in
which [he] reside[d].” That month, Lockhart attempted to purchase an individual
conversion policy from Blue Cross of Georgia, but the company refused to issue
Lockhart a policy because of a gap in his coverage. In the meantime, Blue Cross
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of Memphis merged into Blue Cross of Tennessee. Blue Cross of Tennessee
learned about Lockhart’s predicament, and in January 1999, the insurance
company offered Lockhart a conversion policy retroactive to the date that his
coverage had expired with Blue Cross of Memphis. Lockhart rejected the offer.
In January 2004, Lockhart filed a complaint against the Blue Cross
companies and Southern Health. Lockhart later filed an amended complaint that
Blue Cross and Southern Health had failed to perform their duties as plan
administrators to provide information to Lockhart about his rights under the
Retirement Act, see 29 U.S.C. §§ 1132(c)(1), 1166(a); failed to comply with notice
requirements imposed on employers, id. § 1132(c)(3); and breached their fiduciary
duties, id. § 1132(a)(3). The district court granted partial summary judgment in
favor of Blue Cross and Southern Health and ruled that the companies had not
acted as plan administrators or violated notice requirements. See id. § 1132(c)(1),
(c)(3). After a bench trial before a magistrate judge, the district court entered
judgment against Lockhart’s remaining claim for breach of fiduciary duty. The
district court ruled that Lockhart’s claim was barred by the three-year statute of
limitation and, alternatively, failed for lack of proof that Blue Cross and Southern
Health were fiduciaries.
Lockhart appeals the partial summary judgment and the final judgment
following the bench trial, and we apply the same standard of review to both
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rulings. We review a summary judgment de novo. Holloman v. Mail-Well Corp.,
443 F.3d 832, 836 (11th Cir. 2006). We also “review de novo the district court’s
interpretation and application of the statute of limitations.” McCullough v. United
States, 607 F.3d 1355, 1358 (11th Cir. 2010) (quoting Baker v. Birmingham Bd. of
Educ., 531 F.3d 1336, 1337 (11th Cir. 2008)).
The district court correctly concluded that Blue Cross and Southern Health
were not plan administrators under section 1132(c)(1). The Retirement Act
provides that a plan beneficiary may recover a civil penalty if his plan
administrator “fails or refuses to comply with a request for any information which
such administrator is required . . . to furnish,” 29 U.S.C. § 1132(c)(1), about the
beneficiary’s rights under the Act, id. § 1166. A plan administrator is either “the
person specifically so designated by the terms of the instrument under which the
plan is operated,” id. § 1002(16)(A)(i), or a company acting as a plan
administrator, see Hunt v. Hawthorne Assocs., Inc., 119 F.3d 888, 915 (11th Cir.
1997). The enrollment agreements between Blue Cross, Southern Health, and
Burkeen stated that Burkeen would “act as the ‘plan administrator’ for all purposes
under ERISA including any and all reporting, disclosure or other fiduciary
requirements.” Other undisputed evidence also established that Burkeen controlled
the administration of the plan. Blue Cross and Southern Health supplied to
Burkeen the benefit booklets and other materials regarding the health insurance
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program, and Burkeen agreed in its enrollment agreements to distribute the
materials to its employees and to provide Blue Cross information necessary to
prepare documents such as identification cards. Burkeen also agreed to “provide
all notice and other documentation required under COBRA”; underwrite and
administer continuation coverage; and notify Blue Cross of new enrollees and any
qualifying event of a plan participant. And Darlene Brock, the Director of
Membership Services for Blue Cross, averred in a supporting affidavit that
Burkeen administered its continuation coverage and failed to notify Blue Cross or
Southern Health when Lockhart’s continuation coverage expired.
The district court also correctly concluded that Blue Cross and Southern
Health were not subject to the notice requirements of section 1132(c)(3). Section
1132(c)(3) requires “[a]ny employer maintaining a plan . . . to meet [certain] notice
requirement[s]” in the Act. 29 U.S.C. § 1132(c)(3). An employer is “any person
acting directly as an employer, or indirectly in the interest of an employer, in
relation to an employee benefit plan . . . .” Id. § 1002(5). Lockhart identified
Burkeen as his employer in his amended complaint, his response to the motion for
summary judgment, and his exceptions to the statement of undisputed material
facts submitted by Blue Cross. Lockhart argues, for the first time, that Blue Cross
qualified as an employer by acting in the interest of Burkeen, but we will not
consider a legal theory “not [presented to] the district court and raised for the first
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time in an appeal.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331
(11th Cir. 2004).
The district court also did not err in ruling that Lockhart’s complaint for
breach of fiduciary duty was untimely. An action “with respect to a fiduciary’s
breach of any responsibility, duty, or obligation” under the Retirement Act must be
commenced within “three years after the earliest date on which the plaintiff had
actual knowledge of the breach or violation.” 29 U.S.C. § 1113(2). Lockhart
testified that he knew by March of 1999 that Blue Cross and Southern Health had
violated his rights under the Retirement Act, but Lockhart waited until January
2004, long after the limitation period had expired, to file his complaint. See Brock
v. Nellis, 809 F.2d 753, 755 (11th Cir. 1987). Lockhart argues that Blue Cross and
Southern Health committed fraudulent concealment in May 1999 by asserting that
they were not obliged to notify Lockhart of his right to purchase conversion
coverage, but those assertions could not conceal the alleged wrongdoing of which
Lockhart was already aware. See Morton’s Mkt., Inc. v. Gustafson’s Dairy, Inc.,
198 F.3d 823, 832 (11th Cir. 1999).
Lockhart also raises three other alleged errors, none of which warrant relief.
First, Lockhart argues that five exhibits to his motion to take judicial notice did not
appear in the record at the time of his bench trial, but the omission had no “affect[]
[on] the outcome of [his] case,” Hearn v. McKay, 603 F.3d 897, 904 n.11 (11th
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Cir. 2010) (internal quotation marks omitted). Lockhart introduced two of the
exhibits during the trial and the factual findings of the magistrate judge were
consistent with information in the other exhibits about why Lockhart was unable to
obtain conversion coverage from Blue Cross of Georgia and how that led him to
contact the Georgia Office of Insurance and the Safety Fire Commissioner.
Second, Lockhart argues that Blue Cross and Southern Health waived their
affirmative defenses of timeliness and lack of fiduciary obligations by failing to
file an answer to the original complaint, but the companies timely raised the
defenses in their answer to Lockhart’s amended complaint. See Pensacola Motor
Sales, Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211, 1221–22 (11th Cir. 2012).
Third, Lockhart argues that employees of Blue Cross provided false testimony
about the respective responsibilities of Burkeen and the Blue Cross companies, but
the testimony had no effect on the determination that Lockhart’s claim for breach
of a fiduciary duty was untimely. See Hearn, 603 F.3d at 904 n.11. The allegedly
false testimony did not pertain to when Lockhart knew of wrongdoing by Blue
Cross or whether the company concealed that wrongdoing.
Lockhart mentions in passing other errors in his statement of the issues and
his argument, but he fails to include in his brief any substantive argument about the
alleged errors. The Federal Rules of Appellate Procedure require an appellant to
include in the argument portion of his brief all of his “contentions and the reasons
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for them, with citations to the authorities and parts of the record on which [he]
relies.” Fed. R. App. P. 28(a)(9)(A). Lockhart waived his challenges to the
evaluation of his complaint and amended complaint, the denial of his motion for
default judgment, the order allowing Blue Cross to withdraw its motion to dismiss
part of the amended complaint and instead to file an answer, a discovery violation
by Blue Cross, the denial of his motion to produce documents, and the order that
he pay the costs of the action. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d
1570, 1573 n.6 (11th Cir.1989).
We AFFIRM the judgment in favor of Blue Cross of Tennessee and
Southern Health.
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