Richard L. Ravencraft v. Unum Life Insurance Company of America

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0163P (6th Cir.)
File Name: 00a0163p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
R ICHARD L. R AVENCRAFT ,
Plaintiff-Appellant,
v.
UNUM LIFE INSURANCE
C OMPANY OF AMERICA ,
Defendant-Appellee.
;>

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No. 98-6137
Appeal from the United States District Court
for the Eastern District of Kentucky at Ashland.
No. 97-00076—Henry R. Wilhoit, Jr., District Judge.
Argued: March 8, 2000
Decided and Filed: May 12, 2000
Before: WELLFORD, SILER, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: Richard W. Martin, MARTIN, JUSTICE,
VINCENT & LAVENDER, Ashland, Kentucky, for
Appellant. Ann M. Turner, WYATT, TARRANT &
COMBS, Louisville, Kentucky, for Appellee. ON BRIEF:
Richard W. Martin, MARTIN, JUSTICE, VINCENT &

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2 Ravencraft v. UNUM Life Insurance Co. No. 98-6137
1Ravencraft concedes in his brief that he did receive short-term
benefits after his operation.
LAVENDER, Ashland, Kentucky, for Appellant. Pamela J.
Ledford, WYATT, TARRANT & COMBS, Louisville,
Kentucky, for Appellee.
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OPINION
_________________
HARRY W. WELLFORD, Circuit Judge. Richard L.
Ravencraft filed suit in Kentucky state court for disability
benefits under an employer-sponsored plan through
defendant, UNUM Life Insurance Company of America
(“UNUM”). Asserting that the plan was governed by the
Employee Retirement Income Security Act (“ERISA”),
29 U.S.C. § 1001, et seq., UNUM removed the case to federal
court based upon federal question jurisdiction. The district
court granted summary judgment in favor of UNUM because
Ravencraft failed to exhaust his administrative remedies.
Ravencraft now appeals from the district court’s grant of
summary judgment and its dismissal with prejudice of his
asserted cause of action.
Ravencraft, a pharmacist, filed his claim for long-term
disability benefits in September of 1996 because of a knee
replacement and a serious potential for the same operation on
the other knee.1 His employer, insured through UNUM,
denied his claim in February of 1997, over ninety days after
the date that he filed his claim. The denial of benefits
included the following material language:
We have completed our review of your . . . disability
claim and have made a final determination regarding . . .
benefit disability. Our review has concluded that we are
unable to approve benefits.
. . .

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6 Ravencraft v. UNUM Life Insurance Co. No. 98-6137
prejudice. Accordingly, we VACATE and REMAND this
case to the district court to dismiss the asserted cause of
action without prejudice.
No. 98-6137 Ravencraft v. UNUM Life Insurance Co. 3
2Ravencraft returned to work with his employer, under protest, in
June of 1997 following a period in which he did not receive any disability
benefits.
If you have new, additional information to support your
request for disability benefits, for instance proof of
disability during the interim between June 4, 1996 and
November 19, 1996, please send it to my attention at the
above address.
If you do not agree with our decision, you may have it
reviewed. Should you desire a review, you must send a
written request, within 60 days of your receipt of this
notice, to:
UNUM
LTD Quality Review Section
2211 Congress Street
Portland, ME 04122-0360
. . . You may also request copies of pertinent documents
contained in your file. If UNUM does not receive the
written request within 60 days of your receipt of this
notice, our claims decision will be final.
Rather than submit any new evidence to support his claim, or
seek documentation for the result, or appeal within the time
specified, Ravencraft filed suit.2
I. FUTILITY
We have held in Miller v. Metropolitan Life Ins. Co., 925
F.2d 979, 986 (6th Cir. 1991), that “[t]he administrative
scheme of ERISA requires a participant to exhaust his or her
administrative remedies prior to commencing suit.” This is
the law in most circuits despite the fact that ERISA does not
explicitly command exhaustion. We reiterated that
exhaustion requirement in Baxter v. C.A. Muer Corp., 941
F.2d 451, 453-54 (6th Cir. 1991), citing with approval Makar

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4 Ravencraft v. UNUM Life Insurance Co. No. 98-6137
3Plaintiff concedes that the 90-day period may be extended up to an
additional 90 days if special circumstances so warrant.
4We are not persuaded by Ravencraft’s argument that since his
employer directed him to return to work shortly before the time for
administrative appeal expired that this circumstance indicates futility. The
fact is that plaintiff failed to pursue his available administrative review
procedure.
v. Health Care Corp. of Mid-Atlantic, 872 F.2d 80, 83 (4th
Cir. 1989).
While recognizing this clear Sixth Circuit authority,
Ravencraft maintains that under the circumstances of this case
he was not required first to exhaust his administrative
remedies before filing suit because his pursuit of such
remedies would have been futile. See Springer v. Wal-Mart
Assocs.’ Group Health Plan, 908 F.2d 897, 899 (11th Cir.
1990). Because we review a grant of summary judgment de
novo, Costantino v. TRW, Inc., 13 F.3d 969, 974 (6th Cir.
1994), we look to the authorities, above cited, as well as the
pertinent, virtually uncontested, factual circumstances to
resolve this controversy.
We reject Ravencraft’s assertion that the administrative
process would have been futile based simply on the fact that
the employer filed its denial of benefits beyond the ninety-day
requirement set out in ERISA.3 UNUM’s actions do not
bespeak that it ignored the claim, nor did UNUM fail to give
Ravencraft’s claim due consideration. That the “plan
administrator . . . and trustees who review appeals share
common interests or affiliations” is also insufficient to show
futility. See Amato v. Bernard, 618 F.2d 559, 569 (9th Cir.
1980).4 The policy required “a full and fair review of the
claim,” if a claimant sought a review or submitted additional
documents to that end. As stated in Makar, review or
exhaustion “enables plan fiduciaries to efficiently manage
their funds; correct their errors; interpret plan provisions; and
assemble a factual record which will assist a court in
No. 98-6137 Ravencraft v. UNUM Life Insurance Co. 5
reviewing the fiduciaries’ actions.” Makar, 872 F.2d at 83
(emphasis added.).
In this case, Ravencraft has failed to show that the review
procedures are insufficient or unfair, or that an available
remedy is inadequate. Ravencraft has thus, as a matter of law,
failed to meet his burden to show futility so as to excuse the
usual exhaustion requirement. Weiner v. Klais and Co., 108
F.3d 86, 90 (6th Cir. 1997); Makar, 872 F.2d at 83.
Accordingly, we AFFIRM the grant of summary judgment in
favor of UNUM.
II. DISMISSAL WITH OR WITHOUT PREJUDICE
In a Rule 59(e) motion, Ravencraft requested that the court
amend its order of summary judgment to direct that the action
be dismissed without prejudice. He urged the district court to
adopt the conclusion in Makar, wherein the appellate court
dismissed the case without prejudice and remanded to the
district court “to allow [the claimants] the opportunity to
pursue their [administrative] remedies.” Makar, 872 F.2d at
83. See Baxter, 941 F.2d at 454 n.1. Thus, under those
circumstances, this court held that the dismissal with
prejudice was proper. Id.
Ravencraft claims that this case is factually similar to
Makar and not Baxter because the district court dismissed his
case solely based on his failure to exhaust his administrative
remedies. Consequently, he argues, the district court should
have dismissed the case without prejudice to pursue those
remedies.
Baxter is distinguishable from the circumstances in this
case because the plaintiff in Baxter lost on both the merits and
on the basis of procedural deficiency. Baxter cited Makar
with approval, and the latter involved only procedural failure
on the part of the plaintiff. Makar is therefore akin to the
facts in this case.
Under these circumstances, we believe the district court
should have exercised its discretion to dismiss without

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