In Plambeck v. The Kroger Co., et al., No. CIV. 11-5054-JLV (D.S.D. Mar. 11, 2013), Plaintiff underwent back surgery that she believed to be covered by her health insurance plan — a fact she claimed was confirmed by an insurance plan representative.  Yet, after the procedure, the plan denied her claim because the plan’s terms excluded surgical procedures that were not medically necessary, and it determined the back surgery was not medically necessary.

Plaintiff then sued for equitable relief under ERISA § 502(a)(3), claiming the insurance company represented to her that her surgery was covered and that she relied on this representation.  She pleaded the theory of equitable estoppel and argued defendants were prevented from asserting the surgery was not a covered medical expense under the plan.  Under the theories of surcharge or unjust enrichment, she alleged she was entitled to be “made whole” and to be put in the same position she would have been in had the representations been true.  She alleged that reimbursement for the surgical procedure constituted “other appropriate equitable relief” within the meaning of § 502(a)(3).

Denying plaintiff’s claim, the court found that plaintiff inappropriately attempted to impose personal liability on defendants for the loss to her own pocketbook.  The court found that this liability is a classic form of legal relief which the Eighth Circuit has determined is not available under § 502(a)(3).  Despite Plaintiff’s claim that the Supreme Court’s discussion in Amara relating to equitable relief under § 502(a)(3) supplants Eighth Circuit case law, the court concluded that the Eighth Circuit continues to rely on prior, binding Supreme Court precedent limiting relief sought under § 502(a)(3) to equitable, not legal, relief.  Under Eighth Circuit precedent, permissible monetary claims under § 502(a)(3) are limited to those seeking a specifically identifiable fund.  As Plaintiff sought something more, her claim was impermissible.