{ "id": 3613916, "name": "JOSEPHINE ZERVOS, Plaintiff-Appellant and Cross-Appellee, v. SOLO CUP COMPANY, Defendant-Appellee and Cross-Appellant", "name_abbreviation": "Zervos v. Solo Cup Co.", "decision_date": "1987-12-31", "docket_number": "No. 86-3307", "first_page": "809", "last_page": "815", "citations": [ { "type": "official", "cite": "165 Ill. App. 3d 809" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "29 U.S.C. \u00a71104", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1975, "opinion_index": 0 }, { "cite": "565 F. Supp. 434", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3566434 ], "year": 1975, "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/f-supp/565/0434-01" ] }, { "cite": "29 U.S.C. \u00a7 1102", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1975, "pin_cites": [ { "page": "(c)(2)" } ], "opinion_index": 0 }, { "cite": "473 U.S. 134", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196892 ], "weight": 3, "pin_cites": [ { "page": "142-43" }, { "page": "104" }, { "page": "3091" } ], "opinion_index": 0, "case_paths": [ "/us/473/0134-01" ] }, { "cite": "101 S. Ct. 922", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "66 L. Ed. 2d 841", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "449 U.S. 1112", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11862208, 11861856, 11861666, 11862152, 11861930, 11862064, 11862000, 11861909, 11861721, 11861787, 11862173 ], "opinion_index": 0, "case_paths": [ "/us/449/1112-11", "/us/449/1112-04", "/us/449/1112-01", "/us/449/1112-09", "/us/449/1112-06", "/us/449/1112-08", "/us/449/1112-07", "/us/449/1112-05", "/us/449/1112-02", "/us/449/1112-03", "/us/449/1112-10" ] }, { "cite": "627 F.2d 820", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1287816 ], "year": 1981, "pin_cites": [ { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/f2d/627/0820-01" ] }, { "cite": "29 U.S.C. \u00a7401", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "412 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170758 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "13" }, { "page": "1950" } ], "opinion_index": 0, "case_paths": [ "/us/412/0001-01" ] }, { "cite": "605 F. Supp. 421", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3756200 ], "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/f-supp/605/0421-01" ] }, { "cite": "474 F. Supp. 1324", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4089156 ], "year": 1984, "pin_cites": [ { "page": "1332" } ], "opinion_index": 0, "case_paths": [ "/f-supp/474/1324-01" ] }, { "cite": "746 F.2d 587", "category": "reporters:federal", "reporter": "F.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "590" }, { "page": "590" }, { "page": "590" } ], "opinion_index": 0 }, { "cite": "726 F.2d 1410", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1929528 ], "year": 1984, "pin_cites": [ { "page": "1416" } ], "opinion_index": 0, "case_paths": [ "/f2d/726/1410-01" ] }, { "cite": "624 F.2d 1255", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1273103 ], "year": 1984, "pin_cites": [ { "page": "1266" } ], "opinion_index": 0, "case_paths": [ "/f2d/624/1255-01" ] }, { "cite": "634 F.2d 446", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1304426 ], "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/f2d/634/0446-01" ] }, { "cite": "29 U.S.C. \u00a7 1132", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(g)", "parenthetical": "Supp. IV 1980" } ], "opinion_index": 0 }, { "cite": "29 U.S.C. \u00a71001", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1975, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 676, "char_count": 11690, "ocr_confidence": 0.725, "pagerank": { "raw": 6.85279132066861e-08, "percentile": 0.4177390264837834 }, "sha256": "66e46d7ee8791a116d661334f5382bb8a806f8a33f8964a9dc88948ebe95ab66", "simhash": "1:0e2ad8e6984ccff7", "word_count": 1876 }, "last_updated": "2023-07-14T21:56:33.943810+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOSEPHINE ZERVOS, Plaintiff-Appellant and Cross-Appellee, v. SOLO CUP COMPANY, Defendant-Appellee and Cross-Appellant." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nThis action was brought by Josephine , Zervos, the plaintiff, against Solo Cup Company, the defendant, seeking a declaration that she was entitled to benefits under defendant\u2019s group hospital and major medical plan. (plan). This plan was administered by defendant under ERISA (29 U.S.C. \u00a71001 et seq. (1975)).\nPlaintiff alleged that while working for defendant, and covered under the plan, she was diagnosed as suffering from a physical condition known as morbid obesity. Her physician recommended surgery to treat her condition. Subsequently, her doctor performed a gastric bypass operation. As a result of this surgical procedure, she sustained substantial hospital' and doctor bills. She submitted these bills to the plan\u2019s administrators, who refused to pay the claim because they determined that the procedure was elective surgery and therefore not covered.\nAfter her claim was refused a second time, plaintiff instituted this action. The trial judge found for plaintiff and entered a judgment of $12,473.16. The court, however, refused plaintiff\u2019s request for attorney fees. On plaintiff\u2019s post-trial motion for fees, the court again refused plaintiff\u2019s request. Plaintiff appeals the denial of attorney fees, and defendant cross-appeals the judgment in favor of plaintiff.\nThis appeal presents the following two issues: (1) whether the trial court erred in refusing plaintiff\u2019s request for attorney fees; (2) whether the trial court erred when it reversed the decision of the plan\u2019s trustees and ordered defendant to pay plaintiff\u2019s medical bills. For the following reasons, the judgment of the trial court is reversed and remanded in part, and affirmed in part.\nI\nAs a threshold matter, we address defendant\u2019s argument that since plaintiff did not plead ERISA, she cannot seek fees under its terms. In addition, defendant contends that under section 2 \u2014 1203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2\u2014 1203(a)), a post-trial motion is an inappropriate vehicle to amend the complaint and request attorney fees.\nDefendant\u2019s arguments depend on an overly technical reading of plaintiff\u2019s complaint. On the face of the complaint it is apparent that plaintiff is suing for benefits denied her under defendant\u2019s health plan. The plan, which is incorporated into the complaint as an exhibit, states very clearly in the first few pages that it is created pursuant to ERISA. Thus, plaintiff\u2019s claim arises under ERISA.\nPlaintiff\u2019s post-trial motion did not seek to amend her complaint. Instead, the motion was directed against the trial court\u2019s judgment which denied her attorney fees. Under section 2 \u2014 1203(a), a party may petition the court for a \u201cmodification of the judgment or to vacate the judgment or other relief.\u201d Clearly, plaintiff\u2019s motion seeks a modification of the judgment and accordingly, the motion was proper.\nEven though plaintiff did not pray for attorney fees under ERISA, \u201cthe prayer for relief does not limit the relief obtainable.\u201d (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 604.) The trial court could have allowed an amendment of the prayer for relief to include a claim for fees under ERISA. The prejudice to defendant in allowing this amendment would be minimal, since defendant was well aware that ERISA governed the action having raised ERISA in its answer. Moreover, the amendment is not radically different than the original complaint because plaintiff was originally requesting fees, though under a different statute. Thus, the trial court could have granted plaintiffs post-trial motion and awarded fees under ERISA.\nWe now turn to the merits of plaintiff\u2019s appeal. She raises the issue of whether the trial court erred in denying her request for fees. The trial court ruled that plaintiff could not recover her fees because there was not a preponderance of evidence showing the plan trustees acted in bad faith. The trial court did not consider any other factors in arriving at this conclusion.\nSection 1132(g) of ERISA provides for recovery of attorney fees as follows:\n\u201cIn any action under this [title] *** by a participant, beneficiary or fiduciary, the court in its discretion may allow reasonable attorney fees and costs of action to either party.\u201d (29 U.S.C. \u00a7 1132(g) (Supp. IV 1980).)\nIn construing this provision the Federal appellate courts have established several guidelines for determining whether to award attorney fees to a prevailing party. These guidelines are as follows:\n\u201c(1) the degree of the opposing parties\u2019 culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of fees; (3) whether an award of fees against the opposing parties would deter others from acting under similar circumstances; (4) whether the parties requesting fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA; and (5) the relative merits of the parties\u2019 position.\u201d (Hummel v. S. E. Rykoff & Co. (9th Cir. 1980), 634 F.2d 446, 453.)\n(Accord Iron Workers Local No. 272 v. Bowen (5th Cir. 1980), 624 F.2d 1255, 1266.) Not one of these guidelines is necessarily decisive. (Carpenters Southern California Administrative Corp. v. Russell (9th Cir. 1984), 726 F.2d 1410, 1416.) A showing of bad faith is not required to justify an award of attorney fees. (Smith v. CMTA-IAM Pension Trust (9th Cir. 1984), 746 F.2d 587, 590; Baeten v. Van Ess (E.D. Wis. 1979), 474 F. Supp. 1324, 1332.) As a general rule, a prevailing party in an ERISA action should be awarded her fees unless special circumstances would render such an award unjust. Hollenbeck v. Falstaff Brewing Corp. (E.D. Mo. 1984), 605 F. Supp. 421, 437.\nIn the instant case, the trial court denied plaintiff\u2019s request for fees only because there was no showing of bad faith. It did not consider any of the other relevant guidelines in reaching its conclusion. Following the trial court\u2019s rationale, very few, if any, plaintiffs would be entitled to recover their fees. To deny plaintiff\u2019s request for fees on such a narrow basis thwarts the remedial purpose of ERISA.\nThis case is analogous to Smith v. CMTA-IAM Pension Trust (9th CIr. 1984), 746 F.2d 587, 590. In Smith, the plaintiff brought an ERISA action to recover benefits from his union which he claimed had been wrongfully withheld. He prevailed on his claim, but the trial court refused to award attorney fees because there was no evidence of bad faith. In reversing the trial court, Smith reasoned as follows:\n\u201cAs there was no bad faith on either side, this factor should not have been considered decisive. The relative ability of the parties to satisfy an award of fees is, however, relevant, Generally, when an employee participant brings suit under ERISA, whether it is against the trustees or the employer, the resources available to the pensioner are limited. [Citation.] As the Supreme Court said in Hall v. Cole, 412 U.S. 1, 13, 93 S. Ct. 1943, 1950, 36 L. Ed. 2d 702 (1973), a case involving attorney\u2019s fees under the Labor-Management Reporting and Disclosure Act, 29 U.S.C. \u00a7401 et seq.: \u2018Not to award counsel fees in cases such as this would be tantamount to repealing its basic purpose. It is difficult for individual members of labor unions to stand up and fight those who are in charge. The latter have the treasury of the union at their command and the paid union counsel at their beck and call while the member is on his own ***. An individual union member could not carry such a heavy financial burden. Without counsel fees the grant of federal jurisdiction is but a gesture for few union members could avail themselves of it.\u2019 [Citation.] Based on this factor alone, absent special circumstances, a prevailing ERISA employee plaintiff should ordinarily receive attorney\u2019s fees from the defendant.\u201d 746 F.2d at 590.\nWe are persuaded by the reasoning in Smith that the relative ability of the parties to pay their attorney fees is a very important guideline which should be considered by the trial court. The trial court abused its discretion in not considering this guideline or any other relevant guideline besides bad faith. We reverse and remand this case for a hearing on the question of attorney fees.\nII\nAt this juncture, we turn to defendant\u2019s cross-appeal in which defendant argues that the trial court incorrectly substituted its judgment for that of the plan trustees. The court must affirm the decision of the plan trustees unless it finds that the trustees acted in an arbitrary and capricious manner in denying the claim for benefits. Wardle v. Central States, Southeast & Southwest Areas Pension Fund (7th Cir. 1980), 627 F.2d 820, 824, cert. denied (1981), 449 U.S. 1112, 66 L. Ed. 2d 841,101 S. Ct. 922.\nAn ERISA plan trustee has a fiduciary obligation to process claims in good faith and in a fair and diligent manner. (Massachusetts Mutual Life Insurance Co. v. Russell (1985), 473 U.S. 134, 142-43, 87 L. Ed. 2d 96, 104, 105 S. Ct. 3085, 3091.) Although a trustee may employ others to render advice concerning a claim (29 U.S.C. \u00a7 1102(c)(2) (1975)), he must thoroughly investigate a claim to discharge his fiduciary duties. See McLaughlin v. Connecticut General Life Insurance Co. (N.D. Cal. 1983), 565 F. Supp. 434, 454; see also 29 U.S.C. \u00a71104 (1975).\nThe record before us indicates that Leo Carter testified that he was one of three plan trustees. Carter also testified that he and the other trustees lacked any medical training. He further testified that he had never considered a claim for gastric bypass surgery prior to plaintiff\u2019s claim.\nIn deciding to refuse plaintiff\u2019s claim, Carter and the other trustees did not consult any doctor or medical treatise. Instead, he consulted two articles from the American Journal of Nursing which discussed gastric bypass surgery. Neither one of these articles, however, stated whether the operation was considered elective or cosmetic. In addition, Carter received advice from Dick Wickert, a professional claims administrator. Wickert recommended denying plaintiff\u2019s claim because it was for elective or cosmetic surgery. Without inquiring as to the basis for Wickert\u2019s recommendation, the trustees accepted it and denied plaintiff\u2019s claim. They reached this conclusion despite the evaluation of plaintiff\u2019s surgeon which indicated that if surgery was not performed, other serious complications were not only likely, but probable.\nCarter\u2019s testimony demonstrates that the plan trustees failed to make a diligent investigation of plaintiff\u2019s claim. They arrived at their decision and ignored the surgeon\u2019s evaluation without any competent medical evidence. We agree with the trial court\u2019s finding that the trustees \u201cabandoned their fiduciary duty of asserting their independent judgment in determining the eligibility of the claims, delegating that ultimate responsibility instead to those whom they employed merely for advice.\u201d The trustees failed to meet their obligations under ERISA and reached a decision without a rational basis. We therefore conclude that the trustee\u2019s decision was arbitrary and capricious.\nFor the foregoing reasons the judgment of the circuit court of Cook County is reversed and remanded in part, and affirmed in part.\nReversed and remanded in part; affirmed in part.\nCAMPBELL and MANNING, JJ., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "Ronald S. Fishman, of Chicago, for appellant.", "Fox & Grove, Chartered, of Chicago (Shayle P. Fox and William Henry Barrett, of counsel), for appellee." ], "corrections": "", "head_matter": "JOSEPHINE ZERVOS, Plaintiff-Appellant and Cross-Appellee, v. SOLO CUP COMPANY, Defendant-Appellee and Cross-Appellant.\nFirst District (1st Division)\nNo. 86\u20143307\nOpinion filed December 31, 1987.\nRonald S. Fishman, of Chicago, for appellant.\nFox & Grove, Chartered, of Chicago (Shayle P. Fox and William Henry Barrett, of counsel), for appellee." }, "file_name": "0809-01", "first_page_order": 831, "last_page_order": 837 }