Brenda Olivar, et al. v. Public Service Employee Credit Union Long Term Disability Plan, et al.

ERISA states that “[a]n employee benefit plan may sue or be sued under this subchapter as an entity. . . . In a case where a plan has not designated in the summary plan description of the plan an individual as agent for the service of legal process, service upon the Secretary shall constitute such service.” 29 U.S.C. § 1132(a)(1)(B). Here, Plaintiffs sued their ERISA Plans as entities and served the Secretary of Labor. Both plan summaries designate only a corporation as agent for service. Citing splits in authority, the Colorado Supreme Court held that the Plans were not proper defendants because they were insured and that service on the Secretary was improper because the word “individual” includes corporations even though ERISA differentiates between an “individual” and a “person,” specifically defining only “person” to include corporations. The questions presented are thus:

1. Whether an ERISA benefit plan as an entity is always a proper defendant in an action to recover benefits brought pursuant to 29 U.S.C. § 1132(a)(1)(B) as held by the 2nd Circuit, the State of New Mexico and others, or is the ERISA plan sometimes not a proper defendant as held here by the Colorado Supreme Court and the 11th Circuit.

2. Whether service of process on the Secretary of Labor is proper under 29 U.S.C. § 1132(d)(1) when a summary plan description designates a corporation for service given that ERISA differentiates between an “individual” and a “person”—specifically defining only the term “person” to include corporations.