Brent Kamler v. H/n Telecommunication Services , Inc .

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2995
B RENT K AMLER ,
Plaintiff-Appellant,
v.
H/N T ELECOMMUNICATION S ERVICES , I NC ., et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00-C-4024—Suzanne B. Conlon, Judge.
____________
A RGUED A PRIL 16, 2002—D ECIDED S EPTEMBER 16, 2002
____________
Before C UDAHY , C OFFEY and W ILLIAMS , Circuit Judges.
C UDAHY , Circuit Judge. In this appeal, Brent Kamler
challenges a grant of summary judgment entered against
him on his ERISA-related claims against H/N Telecom-
munication Services, Inc., formerly known as PAL Telecom
Group, Inc. (PAL), PAL Telecom Group, Inc. Employee
Welfare Plan (PAL Plan) and Royal & SunAlliance (Royal).
This case presents a tangled factual scenario which we
will try to untangle as best as we can.
I.
The relationship between Kamler and PAL arose when
PAL decided to hire three managers for a construction

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2 No. 01-2995
project in Brazil. George Lamplota, PAL’s director of project
management, telephoned Kamler for an initial telephone
interview. During this interview, Kamler asked Lamplota
for an annual salary of $95,000, full medical benefits plus
per diem expenses. Kamler, who resides in California,
demanded health insurance before he would go to Brazil.
Lamplota allegedly responded that Kamler would be
insured. Lamplota offered Kamler medical benefits un-
der the PAL Plan, but there is a factual dispute about
whether Kamler stated that he did not want PAL’s health
insurance if he had to pay premiums. See Kamler v. H/N
Telecommunication Serv., Inc., No. 00-C-4024, 2001 WL
740516, *1 (N.D. Ill. June 29, 2001).
On March 17, Kamler signed a letter of commitment me-
morializing the agreement with respect to his compensa-
tion package, but this letter is silent about health insur-
ance coverage. Two days later, Kamler left for Brazil. A
short time later, Lamplota obtained a personnel manual
and an enrollment form for the PAL Plan for Kamler, which
was to be faxed via PAL’s office in Sao Paolo, Brazil. The
personnel manual’s section on insurance states “medical,
life and long-term disability insurance are carried by the
firm on a group basis for the benefit of its employees.”
Kamler, 2001 WL 745016, at *2.
The PAL Plan was an employee welfare benefit plan
established by PAL for eligible employees through partici-
pation in a group medical, life and disability insurance
program. The PAL Plan is governed by the Employee
Retirement Income Security Act (ERISA). The PAL Plan
was underwritten by Trustmark Insurance Company and
administered by Star Marketing & Administration, Inc.
(Starmark). Kamler, 2001 WL 745016, at *3. The Plan
provided that all eligible employees must apply for cov-
erage by filling out an enrollment form. Id. If an employee
applied before working 30 continuous days, his effective
date occurred at the end of the 30-day period, and if he

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No. 01-2995 3
applied after this date, the effective date was the first day
of the month following the date he applied. Id. This 30-day
period could be waived by a request submitted with the
enrollment form. Id. The enrollment form provided in part:
To be completed by the employees only. Failure to
provide complete facts may be cause for cancellation of
your coverage as of its effective date.
NOTE: As part of our routine underwriting procedure,
you may receive a phone call . . . to obtain personal
information needed to evaluate your insurability . . . .
Unless waived above, I request insurance under my
employer’s insurance plan . . . . I authorize my employer
to make deductions from my earnings for my share
of the cost, if any, for the benefits for which I may be-
come entitled.
Kamler, 2001 WL 745016, at *4. The PAL Plan also pro-
vided that, after an employee filled out an enrollment
form and was accepted by Trustmark (the insurance
company providing coverage), the employee would receive
a certificate of insurance.
On March 30, Lamplota faxed the personnel manual and
enrollment form to Victor Jaworski in PAL’s Brazil office
with the following cover memorandum:
Victor: Enclosed please find [PAL’s] . . . Personnel
Manual and the Employee Enrollment Form (Insur-
ance) to be forwarded to Brent Kamler . . . . [He] should
fill out the Employee Enrollment Form and return
it back to me as soon as possible, the coverage is to
start by 05-01-1998.
Kamler, 2001 WL 745016, at *3. Jaworski did not recall
receiving this fax before May 1998.
On May 5, Lamplota resent the March 30th memoran-
dum with the attachments to Jaworski. Id. On May 6, Jim
Oliva faxed this information to Kamler’s hotel in Brazil,

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4 No. 01-2995
with a cover note that read: “Hi Brent: I was asked by
Victor [Jaworski] to follow up on George Lamplota’s fax.
Please fill out the requested forms and fax back to Sao
Paulo office.” Id. Oliva then followed up with a phone call
to Kamler.
After Kamler received the enrollment form, he promptly
called Lamplota with questions about it. This was the
first time since his initial telephone interview in mid-
March 1998 that Kamler had discussed health insurance
coverage with Lamplota. Id. Kamler told Lamplota that
he was concerned that the enrollment form required him
to provide information that he felt violated his right
of privacy. Kamler asked Lamplota for verification of
exactly what information the insurance company wanted,
and why. Lamplota told Kamler that he would contact
the insurance company and call Kamler back. Lamplota
did not tell Kamler that Kamler would not receive coverage
without filling out and submitting the form. Lamplota
also did not advise Kamler to contact Starmark or any-
one else for answers to his questions. Lamplota allegedly
did not call Kamler back with answers to his inquiries, and
Kamler never completed the enrollment process.
On June 3, 1998, Lamplota telephoned Kamler to termi-
nate him because Kamler had completed his assignment
early and there was no further work to do. Kamler re-
turned to the United States. Two weeks later, Kamler had
a heart attack and was admitted to a hospital for treat-
ment. On his hospital bill, the name of his insurance
carrier is blank because he was never able to provide the
hospital with the information. Id.
On August 4, 1998, Kamler submitted a claim to PAL (but
not to the PAL Plan) for payment of the medical expenses
arising from his heart attack. This claim was subsequently
submitted, either by Kamler or PAL, to Royal (PAL’s lia-
bility insurance carrier). Neither PAL nor the PAL Plan
has ever paid Kamler’s medical expenses.

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No. 01-2995 5
In October 1999, CH2M HILL Telecommunications
Group, LLP (“Hill”), and PAL transitionally merged, and
in October 2000, Hill purchased PAL’s assets. Kamler, 2001
WL 745016, at *5. On December 31, 1999, the PAL Plan
was terminated. Id. The former PAL employees were
covered under a new group plan that used a different
insurance carrier than the PAL Plan did. Id.
On March 6, 2000, Lamplota received a letter from
Kamler’s attorney requesting the PAL Plan insurance
documents. Id. The letter was referred by Lamplota to
Nestor Popowych, the president of PAL, and eventually to
legal counsel. It was then passed on to Royal. On Novem-
ber 24, Royal denied Kamler’s claim for payment of his
hospital bill based upon the results of its investigation.
Kamler never contacted Starmark, and no one requested
information regarding the PAL Plan or submitted a claim
for benefits to Starmark.
On March 20, 2001, Kamler filed his second amended
complaint against PAL, the PAL Plan, Royal and Starmark.
The defendants moved for summary judgment. The dis-
trict court granted the motion. The district court held
that Kamler did not have standing to bring a claim for
medical benefits because Kamler was not a participant in
the PAL Plan. In connection with the issue of standing,
the district court held that Kamler did not have a color-
able claim for medical benefits because alleged misrepre-
sentations on the part of an employer’s agents are in-
sufficient to provide standing. Alternatively, Kamler did
not have standing because he failed to satisfy his duties
of self help and due diligence by neglecting to file his
enrollment papers with Starmark. The district court
also denied the claim for statutory penalties against
PAL and Royal for failure to respond to a request for
information. It concluded that Kamler should have made
his request for information to Starmark, rather than to
PAL or Royal. Moreover, the information requested was
outdated since the PAL Plan had been terminated over

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6 No. 01-2995
1 29 U.S.C. § 1132 provides:
(a) Persons empowered to bring a civil action. A civil action
may be brought—
(1) by a participant or beneficiary—
(continued...)
a year and half earlier, and the request was made very
late. Subsequently, the claims against Starmark were
dismissed by stipulation of settlement. Kamler appeals
from the judgment of the district court on the remaining
claims against PAL, the PAL Plan and Royal.
II.
This court has jurisdiction under 28 U.S.C. § 1291. We
review the grant of a motion for summary judgment de
novo, drawing all reasonable inferences in favor of the non-
movant. Neuma, Inc. v. AMP, Inc., 259 F.3d 864, 871 (7th
Cir. 2001). We will affirm a grant of summary judgment
if “the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(c); see also Neuma, 259
F.3d at 871. Cf. Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 114 (1989) (holding that generally, “a denial
of benefits challenged under § 1132(a)(1)(B) [of ERISA] is
to be reviewed . . . de novo”). We review a district court deci-
sion to impose or not to impose statutory penalties for an
abuse of discretion. 29 U.S.C. § 1132(c)(1); see also Neuma,
259 F.3d at 879.
A.
Kamler seeks to recover his medical expenses from PAL
and the PAL Plan under 29 U.S.C. § 1132(a)(1)(B). 1 Because

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No. 01-2995 7
1 (...continued)
. . .
(B) to recover benefits due to him under the terms of
his plan, to enforce his rights under the plan, or to
clarify his rights to future benefits under the terms of
the plan.
the PAL Plan is governed by ERISA, Kamler must first
establish that he has standing to bring these claims. Under
ERISA, only participants can bring a claim against a
plan for benefits. See Firestone, 489 U.S. at 116. A partici-
pant is a “former employee . . . who is or may become
eligible to receive a benefit of any type from an employee
benefit plan.” 29 U.S.C. § 1002(7). Further, persons who
have “a reasonable expectation of returning to covered
employment” or who have a “colorable claim to vested ben-
efits” also have standing to bring ERISA claims. Firestone,
489 U.S. at 117 (internal quotations omitted). Because
Kamler is neither currently employed by PAL nor expected
to be employed by PAL, he is a participant only if he has
a “colorable claim to vested benefits.” We have held that
the requirements for a colorable claim are not stringent;
a plaintiff need have only a nonfrivolous claim for the
benefit in question. Panaras v. Liquid Carbonic Indus.
Corp., 74 F.3d 786, 790 (7th Cir. 1996).
Kamler argues that he has a colorable claim for benefits—
and thus standing—under the alternative theories of
estoppel and breach of fiduciary duty. We have previously
noted that “ERISA’s standing requirements put this court
in the rather unusual position of having to adjudicate the
merits of the case at a fairly preliminary stage of the
proceedings.” Sallee v. Rexnord Corp., 985 F.2d 927, 930
(7th Cir. 1993). Based upon our analysis of Kamler’s alter-
native theories for standing, see infra, we are inclined to
disagree with the district court and hold that Kamler

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8 No. 01-2995
2 We note that the district court’s reliance on Loechl v. Illinois
Bell Telephone Co., 648 F. Supp. 1178 (N.D. Ill 1986) and Freeman
v. Jacques Orthopaedic & Joint Implant Surgery Med. Group,
721 F.2d 654 (9th Cir. 1983), is misplaced in light of cases such
as Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574 (7th Cir.
2000), which permitted a plaintiff, who stated a claim based
upon misrepresentation, to prevail on an ERISA claim. Loechl
and Freeman were decided before Firestone, which this court
has interpreted to extend standing to any plaintiff with a color-
able claim for benefits. See Panaras, 74 F.3d at 786.
has standing because he has stated nonfrivolous claims
for benefits. 2
B.
First, Kamler argues that he is entitled to medical
benefits under the PAL Plan because, except for the
misrepresentations by PAL, the PAL Plan or their agents,
he would have enrolled in the PAL Plan. Kamler’s argu-
ment is based on several species of estoppel.
The first is an equitable estoppel theory. Kamler
argues that the defendants represented to him that he
was already insured. For example, Lamplota, during the
March 1998 phone interview, allegedly assured Kamler
that Kamler would receive health insurance. The cover
letter of the memo faxed by Lamplota to Jaworski in May
1998, and faxed on to Kamler, also allegedly represented
that Kamler had health insurance beginning in May 1998.
Finally, the personnel manual, faxed with the memoran-
dum, allegedly represented that Kamler was already
insured when it stated that “medical, life and long-term
disability insurance are carried by the firm on a group
basis for the benefit of its employees.” Thus, Kamler
argues that, if it had not been for these misrepresenta-

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No. 01-2995 9
tions that he was already insured, he would have filled
out an enrollment form.
Alternatively, Kamler argues that the defendants pre-
vented him from enrolling and thus they should be
estopped from denying him benefits that he would have
received if he had enrolled. Besides representing to him
that he was already insured (and thus implying that he
did not need to enroll), Kamler argues that Lamplota’s
failure to call him back to answer his privacy concerns
was a misrepresentation that resulted in Kamler’s failure
to complete the enrollment process. Finally, Kamler makes
a promissory estoppel claim. He argues that PAL, through
its agent Lamplota, promised him medical benefits and
that he relied on this promise when he accepted employ-
ment and left for Brazil.
“It is not easy to apply estoppel principles to ERISA cases
in the face of the rule requiring modifications to plans to
be in writing, 29 U.S.C. § 1102(a)(1), and the required
procedures for amending plans, 29 U.S.C. § 1102(b)(3).”
Coker v. Trans World Airlines, 165 F.3d 579, 585 (7th Cir.
1999). This court has, however, permitted plaintiffs to raise
estoppel-based causes of action under ERISA. See, e.g.,
Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574 (7th Cir.
2000) (holding that a plan administrator was estopped
from denying medical coverage where the plan documents
were ambiguous and someone with apparent authority
to interpret the plan made oral misrepresentations). In
attempting to clarify some confusion about estoppel, we
held in Coker that the elements of ERISA-estoppel are:
(1) a knowing misrepresentation by the defendant; (2) in
writing; (3) with reasonable reliance by the plaintiff on
the misrepresentation; (4) to the plaintiff’s detriment.
Coker, 165 F.3d at 585. As defined, ERISA-estoppel can
encompass both the concept of promissory estoppel and
the concept of equitable estoppel. See id. (noting that the

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10 No. 01-2995
proposed four-factor test for ERISA-estoppel encom-
passed “what has been implicit in all of our estoppel cases”).
Finally, in Bowerman, we clarified that “oral representa-
tions of an ERISA plan may not be relied upon . . . when
the representation is contrary to the written terms of
the plan and those terms are set forth clearly.” Bowerman,
226 F.3d at 588. Therefore, all of Kamler’s claims based
on estoppel principles will be analyzed under the Coker
four-factor test.
Under the Coker test for ERISA-estoppel, Kamler faces
several problems with his estoppel theories. The principal
problem is that there is no allegation of knowing mis-
representations. Kamler does not allege that he was told
by anyone that he did not have to enroll in the PAL Plan
to receive medical benefits. Rather, at least one docu-
ment sent to Kamler, the fax from Oliva, asked him to
“fill out the requested forms.” A promise to provide insur-
ance is not a promise that Kamler would receive insur-
ance even if he did not enroll. Similarly, a promise to
answer privacy concerns is not a promise that Kamler
could wait indefinitely to complete the enrollment process.
At best, the alleged misrepresentations might imply
that Kamler did not have to enroll, but, as discussed infra,
it was not reasonable for him to interpret the alleged
misrepresentations in that manner.
Kamler also cannot show that it was reasonable for
him to rely upon the alleged misrepresentations to justify
his failure to enroll. In his deposition, Kamler admits
that he has never received disability or life insurance
through a previous employer without filling out a form.
Further, he testified that he never received an insurance
card or certificate of insurance from PAL, the PAL Plan or
Starmark, the plan administrator. Kamler also did not
know the name of the insurer, the terms of coverage, the
deductibles, the exclusions or the period of time the policy
covered. Finally, it was unreasonable for Kamler to in-

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No. 01-2995 11
terpret the alleged misrepresentations as excusing him
from enrolling in the Plan because the PAL Plan docu-
ments unambiguously and clearly require enrollment as a
precondition for coverage.
In interpreting an ERISA plan, we apply the federal
common law rules of contract interpretation. Neuma, Inc. v.
AMP, Inc., 259 F.3d 864, 873 (7th Cir. 2001). These rules
“require us to interpret terms of ERISA plans in an ordi-
nary and popular sense as would a person of average
intelligence and experience.” Swaback v. Am. Info. Techs.
Corp., 103 F.3d 535, 540-41 (7th Cir. 1996). In attempt-
ing to interpret an ERISA plan, “our first task is to deter-
mine if the [documents governing the ERISA plan] at
issue [are] ambiguous or unambiguous.” Neuma, 259 F.3d
at 873. “[I]f a document governing an ERISA plan is
unambiguous, this court will not look beyond its ‘four
corners’ in interpreting its meaning.” Id.
After reviewing the PAL Plan documents, we believe
that the documents clearly and unambiguously require
an employee to enroll before the employee becomes eligible
for medical benefits. The cover page of the policy issued
by Trustmark, which governs the PAL Plan, states that:
Trustmark “insures those Eligible Persons . . . whose
applications have been approved by the [insurance] Com-
pany and for whom the premium has been paid.” Appel-
lant’s Separate Appendix (S.App.) 173 (emphasis added).
Section D of the policy states: “Eligible Employees must
apply for coverage . . . . All applications must be made to
the Company . . . . All applications must be made on forms
acceptable to the Company.” S.App. 176 (emphasis added).
The “Participating Employer Application and Agreement”
provides that eligible employees “must apply.” S.App. 179.
The Administration Guide, provided by Starmark, pro-
vides: “Each employee must complete, sign and date the
Starmark Employee Enrollment Form . . . in order to
apply for coverage under the group insurance plan.” S.App.

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12 No. 01-2995
188. Finally, on the Enrollment Form, under the heading
“Waiver of Coverage,” there is a provision: “This is to cer-
tify that I have been given the opportunity to apply for
group medical and/or dental coverage through my employer
and I have decided not to apply. I understand that if
I choose to apply for this coverage in the future, my ap-
plication may be subject to individual medical underwrit-
ing, and I may be required to furnish evidence of insur-
ability at my own expense.” S.App. 194 (emphases added).
Whether Kamler did or did not intend to complete the
enrollment process is irrelevant. It is undisputed that
Kamler did not in fact complete the enrollment process. In
light of the clear language of the PAL Plan, it was unrea-
sonable for Kamler to interpret the representations by
Lamplota, PAL or the PAL Plan documents as excusing
enrollment. Thus, Kamler cannot satisfy the requirement
of reasonable reliance.
A final problem with Kamler’s reliance on estoppel is
that some of the alleged misrepresentations were oral,
and Kamler does not fit into the exception carved out
by Bowerman for oral misrepresentations. In Bowerman,
we permitted oral misrepresentations to be a basis for
ERISA estoppel only if: (1) the ERISA plan was ambiguous
and (2) an agent of the plan, or someone with apparent
authority to interpret the plan, made the oral misrep-
resentations. Bowerman, 226 F.3d at 588. Here, the PAL
Plan documents were not ambiguous about the require-
ment of enrollment for coverage. Further, it was unrea-
sonable for Kamler to believe that Lamplota had appar-
ent authority to modify the PAL Plan by excusing en-
rollment since the enrollment form clearly indicates
that enrollment was mandatory and that any questions
should be addressed to Starmark. Cf. Bowerman, 226 F.3d
at 589 (“There is considerable force to the argument that,
given the clarity of this particular direction, it was not
reasonable for the [employee] to seek advice elsewhere.”).

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No. 01-2995 13
Thus, because Kamler cannot show that there was a
misrepresentation and he cannot show reasonable reli-
ance on any alleged misrepresentation, Kamler is not
entitled to recover his medical expenses from the PAL
Plan or from any other of the present defendants on any
theory of estoppel. The shortness of the time he spent
in Brazil, as a PAL employee, no doubt contributed to his
difficulties with health insurance, but this factor does
not change our analysis.
C.
Kamler also argues that he can recover his medical
expenses under the PAL Plan because PAL, through its
agent Lamplota, breached its fiduciary duties to him
under the Plan. Kamler alleges that PAL breached its
fiduciary duties when: (1) Lamplota assured Kamler that
he would be covered by PAL’s insurance from the begin-
ning of his employment when in fact PAL imposed a 30-
day waiting period, (2) PAL delayed in providing him
with the enrollment form until May 6, 1998, (3) PAL
provided him with a materially incomplete enrollment
form because it omitted an allegedly crucial “Notice Un-
der the Fair Credit Reporting Act” (FCRA notice), (4) PAL
failed to inform him that enrollment was a requirement
of coverage and (5) PAL failed to respond to his specific
request for information about privacy concerns.
To be a fiduciary of an ERISA plan, an individual “must
exercise a degree of discretion over the management of
the plan or its assets, or over the administration of the
plan itself.” Under ERISA, a fiduciary must “discharge
his interests with respect to a plan solely in the inter-
est of the participants and beneficiaries.” 29 U.S.C.
§ 1104(a)(1). Fiduciaries breach this duty “if they mis-
lead plan participants or misrepresent the terms or ad-
ministration of a plan.” Anweiler v. Am. Elec. Power
Serv. Corp., 3 F.3d 986, 991 (7th Cir. 1993). Not all errors

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14 No. 01-2995
3 Starmark usually sends a FCRA Notice attached to the en-
rollment form to inform enrollees that it was permitted under
federal law to investigate the credit, medical history, character,
general reputation, personal characteristics and mode of living
of an enrollee and his or her family. In the present case, a FCRA
Notice was not faxed with the enrollment form.
in communicating information regarding a plan violate a
fiduciary’s duty under ERISA, but “material facts affect-
ing the interests of plan participants or beneficiaries”
must be disclosed. Bowerman, 226 F.3d at 590. A plan
participant may obtain individual “appropriate equitable
relief” under 29 U.S.C. § 1132(a)(3) for a fiduciary’s breach
of fiduciary duties. Varity Corp. v. Howe, 516 U.S. 489, 508-
15 (1996). Finally, although not explicitly indicated by
the prior caselaw, the plaintiff must allege that the
breach of fiduciary duty caused some harm to him or
her that can be remedied.
Here, none of the allegations support a claim for breach
of fiduciary duty on the part of PAL or its agent, Lamplota.
Lamplota’s mistaken assurance that Kamler was imme-
diately covered could be a breach of fiduciary duty
only if Kamler had enrolled and was then denied med-
ical benefits during the 30-day waiting period. This is
a simple application of the principle of causality and
the conditions of liability are not met here. Similarly, the
delay in providing Kamler with the enrollment form
would be a breach of a fiduciary duty only if Kamler had
actually enrolled but then was denied medical benefits
for the period prior to the date of enrollment. The failure
expressly to inform Kamler that enrollment was a re-
quirement of coverage was not a breach of fiduciary duty
because the PAL Plan made this abundantly clear. PAL had
no duty to emphasize something that had already been
clearly communicated to Kamler.
Finally, the failure to provide a FCRA Notice 3 and PAL’s
failure to respond to Kamler’s specific request for infor-

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No. 01-2995 15
mation about privacy concerns are breaches of fiduciary
duty only if Kamler’s indefinite delay in completing the
enrollment process while waiting to have his privacy
concerns addressed was reasonable. To make out a claim
for a breach of fiduciary duty, Kamler would at least
have had to allege that, if he had received the FCRA
Notice (which the law did not require to be sent to en-
rollees) or if he had heard a reply from Lamplota on his
privacy concerns, he would have completed the enrollment
process. Kamler did not make these allegations in his
Complaint and, since he never did receive the assurances
that he needed, it becomes purely hypothetical whether
he would have completed the enrollment process if he had
been so reassured. In any case, we believe that it was not
reasonable for Kamler to indefinitely delay enrolling in
the PAL Plan while waiting to have his privacy con-
cerns addressed because the PAL Plan documents clearly
required enrollment as a precondition for coverage. Fur-
ther, although Kamler had privacy concerns, he had no
legal right not to furnish the information requested if
he expected coverage. Since Kamler has been previously
employed and had received insurance coverage from
previous employers, he knew or should have known that
insurance companies were entitled to such information.
Thus, PAL did not breach any fiduciary duties that it
owed to Kamler.
D.
Besides his claims under the alternative theories of
estoppel and breach of fiduciary duty, Kamler also argues
that he was entitled to medical benefits under the PAL
Plan because his error in failing to enroll was covered by
the clerical errors provision of the insurance policy issued
by Trustmark that governs the PAL Plan. The relevant
insurance provision states:

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16 No. 01-2995
4 29 U.S.C. § 1132(c)(1) provides that:
Any administrator . . . (B) who fails or refuses to comply with
a request for any information which such administrator is
(continued...)
Clerical error by a Participating Employer or by the
Assured shall not invalidate coverage of a person
insured. This includes error in enrolling, recording or
reporting for coverage purposes. Any premium not
paid because of the error must be paid in full at the
time the error is corrected.
After careful review of this provision, we are convinced that
it does not cover a failure to enroll. Rather, the provision is
designed to deal with clerical errors, for example, where
an enrollee puts a wrong social security number on his
application. This is a far cry from that. Kamler’s argument
that this provision can be the basis of relief (because the
delay in getting the enrollment papers to him, the omis-
sion of the FCRA Notice and the failure to respond to his
privacy concerns were all “errors in enrolling”) is unpersua-
sive because, even if those alleged errors were “errors
in enrolling,” they were not the legal causes of Kamler’s
failure to enroll in the plan. Rather, it was Kamler’s un-
reasonable response to those alleged errors that resulted
in his failure to enroll. Hence, Kamler is not entitled to
recover his medical expenses.
E.
Kamler also seeks civil penalties against PAL, the PAL
Plan and Royal for failure to provide him with the PAL
Plan documents he requested. Section 502(c) of ERISA, 29
U.S.C. § 1132(c), requires plan administrators to provide
information requested by plan participants or benefici-
aries within 30 days of such request, or face a statutory
fine. 4 ERISA authorizes a plan participant or beneficiary

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No. 01-2995 17
4 (...continued)
required by this subchapter to furnish to a participant or
beneficiary . . . by mailing the materials requested to the last
known address of the requesting participant or beneficiary
within 30 days after such request may in the court’s discre-
tion be personally liable to such participant or beneficiary in
the amount of up to $100 a day from the date of such failure
or refusal, and the court may in its discretion order such
other relief as it deems proper.
5 There is some dispute concerning whether Starmark is or is
not a plan administrator. Under ERISA, where a plan admin-
istrator is not designated, the plan sponsor—in this case, PAL—is
deemed the plan administrator. See 29 U.S.C. § 1002(16)(A)-(B).
We believe that a reasonable reading of the PAL Plan docu-
ments indicates that Starmark was the plan administrator.
In any case, the district court’s refusal to impose statutory pen-
alties on Starmark, PAL or Royal can be sustained based upon
the lateness of Kamler’s request and the outdated nature of
the requested documents.
to sue for civil penalties if a plan administrator vio-
lates section 502(c). See 29 U.S.C. § 1132(a)(1)(A) (“A civil
action may be brought . . . by a participant or benefici-
ary . . . for the relief provided for in [29 U.S.C. § 1132(c)].”).
Whether to impose these statutory penalties is within the
discretion of the district court and is reviewable only for
abuse. 29 U.S.C. § 1132(c)(1); see also Neuma, 259 F.3d
at 879. Here, the district court did not abuse its discretion
in denying Kamler’s motion for imposition of statutory
penalties.
Kamler made the request for information to PAL and
Royal, who are not the plan administrators, to whom
section 1132(c) requires the request be made. 5 The re-
quest therefore should have been made to Starmark as
plan administrator. The enrollment documents that were
sent to Kamler made this clear when they stated that
the PAL Plan was administered by Starmark. That Kamler

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18 No. 01-2995
misplaced these documents due to his illness is unfortu-
nate, but does not excuse him from complying with the
requirements of section 1132(c). Second, the fact that
the requested documents were outdated (since the PAL
Plan had been terminated prior to Kamler’s request for
information) and that the request for documents came
more than a year and a half after Kamler incurred his
medical expenses are additional reasons why there was
no abuse of discretion.
III.
For the foregoing reasons, we A FFIRM the judgment of
the district court dismissing Kamler’s claims.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-16-02

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