United States District Court, D. Nevada
J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Motion for Default Judgment (the
“Motion”) seeking a monetary judgment against
Defendants Brandon S. Clifton (“Clifton”) and
Kimberly A. Cominsky (“Cominsky” and, together
with Clifton, “Defendants”). ECF No. 11. The
Motion was filed on August 30, 2019. No response to the
Motion was filed.
case commenced on May 29, 2019 when Plaintiff the Employee
Painters' Trust (“Plaintiff” or the
“Trust”) filed its Complaint against Defendants
asserting seven claims for relief. ECF No. 1. These claims
include Unjust Enrichment Under ERISA, Fraud, Fraudulent
Misrepresentation, Fraudulent Concealment, Negligent
Misrepresentation, Conversion, and Unjust Enrichment.
Id. Clifton was named as a defendant because, as an
employee of certain employers, he was entitled to participate
in a health and welfare plan administered by the Trust
pursuant to the Employee Retirement Income Security Act
(“ERISA”). Clifton's dependents (also
referred to as beneficiaries) were entitled to participate in
health and welfare benefits under circumstances specified in
health and welfare plan documents.
married Cominsky on or about February 4, 2004. Defendants
were divorced in September 2012. The Trust admits that
Clifton notified the Trust of his divorce from Cominsky in
March 2017. ECF No. 11 at 3:11-13; 4:2-3. In fact, while
Clifton apparently did not submit documentation of the
divorce, the Trust admits that, in March 2017, Clifton
advised the Trust that he and Cominsky were legally divorced
“through a Decree of Divorce” entered on
September 14, 2012. Id. at 4:2-4.
the March 2017 notice, sometime in early 2018 (the exact date
is not provided by the Trust), Cominsky contacted the
Trust's third party administrator seeking to confirm her
continued coverage eligibility under the Plan, as well as new
member cards. The Trust also, alternately, states that:
(1) “Cominsky received health benefits from the Trust
for the period February 2004 through August 2018”
(id. at 3:18-19);
(2) it “paid $37, 828.12 in medical and prescription
benefits” for Cominsky for the period “December
2016 until July 2017” (id. at 3:24-25); and
(3) it paid “$37, 828.12 in benefits for Ms. Cominsky
from approximately October 2012, forward for which she was
ineligible.” ECF No. 11-1 (Declaration of Connie
Callahan) ¶ 21.
claims summary attached as Exhibit 2 to Plaintiff's
Motion definitively shows that the claims for which the Trust
seeks reimbursement arose from invoices dated September 22,
2017 through July 9, 2018. These dates are confirmed by
Plaintiff's Exhibit 4. The amounts on Plaintiff's
Exhibits 2 and 4 each total $37, 828.12.
Trust attaches three versions of the Employee Painters'
Trust Health and Welfare Plan (each the “H & W
Plan” or the “Plan”) to its Motion.
Exhibits 1-A, 1-B, and 1-C. On page 18 of the 2007 Plan, it
states “lawful spouse[s]” are eligible dependents
under the Plan. Ex. 1-A at 18. Page 20 of the 2007 Plan lists
those dependents not eligible for benefits including
“divorced spouse[s].” Id. at 20. On page
20 it also states, inter alia, that “[a]
dependent's insurance will end at midnight on the
earliest of: . . . the last day of the Plan month the
dependent is no longer eligible.” Id. Finally,
on page 59 of the 2007 Plan it states that divorce is a
qualifying event for COBRA and, in order to be eligible for
COBRA, the Plan participant or dependent has the
responsibility to notify the Trust of the loss of coverage
eligibility in writing within 60 days of the qualifying
event. Id. at 59. The 2013 Plan identifies the same basic
definitions of eligibility for lawful spouses, loss of
coverage based on divorce, and when a dependent's
insurance will end. Ex. 1-B at 6-7.
2018 Plan, effective in August 2018, includes the same lawful
spouse eligibility, loss of eligibility, and timing
applicable to when coverage ends as the 2007 and 2013 Plans.
Ex. 1-C at 12 and 13. However, for the first time, this Plan
includes a provision titled “Your Obligation to Notify
the Plan of Changes in Dependent Status.” Id.
at 13. The “Obligation” in the 2018 Plan document
states that “[y]ou must notify the Trust Office in
writing if there is a change in the qualifying status of any
of your dependents within 60 days of the date on which the
change occurs.” Id. at 13. This provision is
conspicuously absent from the 2007 and 2013 Plans submitted
Clifton nor Cominsky have appeared in this matter despite
effective service. ECF Nos. 4 and 5. Thus, obviously, neither
Defendant offers a reason for their failure to notify the
Trust of their divorce at any time before March 2017. The
Trust also offers no facts evidencing that it received
information regarding the reason for Defendants' failure
to provide notification of the event disqualifying Cominsky
from continued eligibility for benefits prior to March 2017.
Importantly, however, the Trust provides no document or
authority for asserting that Clifton's oral notice to the
Trust in March 2017 was insufficient under the terms of the
then-effective 2013 Plan (Plaintiff's Ex. 1-B), which is
silent with respect to what constitutes effective notice of a
change in eligibility (distinct from what is required when
COBRA coverage is sought). Plaintiff offers no explanation
for why, once notice of Clifton's divorce from Cominsky
was received in March 2017, the Plan paid any benefits on
behalf of Cominsky.
pending Motion seeks $37, 828.12 in medical benefits paid on
behalf of Cominsky, all of which were incurred after Clifton
provided oral notice of his divorce and the divorce date to
the Trust. ECF No. 11 at 4:2-3 (“On or about March
2017, Mr. Clifton informed the
Trust that he and Ms. Cominsky had been legally
divorced, through a Decree of Divorce which was entered on
September 14, ...