906 F.

2d 1525

Marlowe BLAKE and Pam Blake, Plaintiffs-Appellants,

v.
UNIONMUTUAL STOCK LIFE INS. CO. OF AMERICA,
Defendant-Appellee.
No. 89-5334.

United States Court of Appeals,

Eleventh Circuit.
July 30, 1990.

Joel S. Perwin, Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin &

Perwin, Miami, Fla., for plaintiffs-appellants.
William J. Gallwey, III, Shutts & Bowen, Miami, Fla., Peter J. Guffin,
Asst. Counsel, Unionmutual Life Ins. Co., Portland, Me., for defendantappellee.
Appeal from United States District Court for the Southern District of
Florida.
Before FAY, Circuit Judge, RONEY* , Senior Circuit Judge, and
PITTMAN**, Senior District Judge.
PER CURIAM:

Maintaining that additional compensation of $33,269 is due under a group

health insurance policy, Marlowe and Pam Blake brought a civil action
pursuant to 29 U.S.C.A. Sec. 1132(a)(1)(B) of the Employee Retirement
Income Security Act of 1974 (ERISA). 1 The district court held that the
insurance company's responsibility for Pam Blake's medical bills, which were
incurred for extensive psychiatric care related to a postpartum depression, a
complication of pregnancy, was limited under the policy's coverage of mental
illness. The Blakes' claim that postpartum depression is covered under "the
sickness," rather than "the mental illness," section of the policy, and that, in any
event, they were entitled to a jury trial. We affirm.

As to the claim to a jury trial under the Seventh Amendment, appellants

concede that this Circuit has held that plaintiffs are not entitled to a jury trial
under ERISA when the issue is whether it was arbitrary or capricious for
benefits to be denied. Chilton v. Savannah Foods & Industries, Inc., 814 F.2d
620 (11th Cir.1987) (rejecting claim that a suit for benefits under 29 U.S.C.A.
Sec. 1132(a)(1) should be tried to a jury); Howard v. Parisian, Inc., 807 F.2d
1560 (11th Cir.1987) (stating that the former Fifth Circuit squarely held that
plaintiffs in actions under 29 U.S.C.A. Sec. 1132(a)(1)(B) are not entitled to
trial by jury); Calamia v. Spivey, 632 F.2d 1235, 1237 (5th Cir.1980),
(following Wardle v. Central States, Southeast & Southwest Areas Pension
Fund, 627 F.2d 820 (7th Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922,
66 L.Ed.2d 841 (1981)).

Circuit courts dealing with the jury trial issue in ERISA-regulated plans have
generally followed Wardle's reasoning. Cox v. Keystone Carbon Co., 894 F.2d
647 (3rd Cir.1990) (plaintiff's claim to Seventh Amendment jury trial dealt
fatal blow by earlier decisions that section 502(a)(1)(B) claims are equitable in
nature) petition for cert. filed, (U.S. Apr. 20, 1990) (No. 89-1721); Daniel v.
Eaton Corp., 839 F.2d 263, 268 (6th Cir.) (no right to a jury trial under Sec.
502) (citing Crews v. Central States, 788 F.2d 332, 338 (6th Cir.1986)), cert.
denied, 488 U.S. 826, 109 S.Ct. 76, 102 L.Ed.2d 52 (1988); Berry v. CibaGeigy, 761 F.2d 1003, 1006-07 (4th Cir.1985) (no right to jury trial in
termination of pension benefits); Katsaros v. Cody, 744 F.2d 270 (2d Cir.), cert.
denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984); In re Vorpahl,
695 F.2d 318 (8th Cir.1982) (no jury trial required in cases under section 502).
But cf. Stamps v. Michigan Teamsters Joint Council No. 43, 431 F.Supp. 745
(E.D.Mich.1977); (claims under Sec. 1132(a)(1)(B) legal rather than equitable);
Gangitano v. NN Investors Life Insurance Co., 733 F.Supp. 342 (S.D.Fla.1990)
(constitutional right to jury trial exists in Sec. 1132(a)(1)(B) action).

The Blakes argue, however, that the change in the standard of review from
arbitrary and capricious to de novo, made by Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), converts the claim
from an equitable claim to a breach of contract action, which entitles them to a
jury trial under the Seventh Amendment.

In our judgment, however, this argument cannot prevail. The nature of an action
under section 502(a)(1)(B) is for the enforcement of the ERISA plan. Although
the plaintiffs assert that they are claiming money damages, in effect they are
claiming the benefits they are allegedly entitled to under the plan. Although
here the medical treatment has been completed so that a money judgment

would satisfy their demands, if the claimant were still under treatment, only an
order for continuing benefits would be sufficient. This is traditionally equitable
relief so that the cases relied upon by the appellants are not applicable. Curtis v.
Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) (the Seventh
Amendment requires a jury trial where a statute creates legal rights and
remedies enforceable in a action for damages in a court of law); Granfinanciera,
S.A. v. Nordberg, --- U.S. ----, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989) (if a
statutory right is not closely intertwined with a federal regulatory program, and
the right is legal in nature, then it carries the Seventh Amendment's guaranty of
a jury trial).
6

Thus we are constrained to follow the overwhelming precedent which has

clearly determined that claims on medical insurance plans issued pursuant to
ERISA are equitable in nature, and the de novo standard of review does not
control the application of the Seventh Amendment. See Chauffeurs, Teamsters
and Helpers, Local No. 391 v. Terry, 494 U.S. ----, 110 S.Ct. 1339, 108
L.Ed.2d 519 (1990) (the right to a jury trial is determined by "the nature of the
issues involved and the remedy sought").

This decision makes it unnecessary to confront the alternate argument of

defendant-appellee that because of the failure of the plaintiffs to offer sufficient
evidence to prove their case, the district court would have been compelled to
direct a judgment for the defendant even if a jury otherwise would be required.

As to the argument that Pam Blake's postpartum treatment was covered by the
"sickness" provisions of the policy, a review of the record reveals that the
district court must be affirmed on the findings of fact and reasoning under the
proper de novo standard of review as reflected in its Memorandum Order
attached hereto as an Appendix.

AFFIRMED.

APPENDIX
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
10
Marlowe and Pam Blake, Plaintiffs,
11
vs.
12
Unionmutual Stock Life Insurance Co. of America, Defendant.
13

Case No. 87-0543-CIV-SCOTT

MEMORANDUM ORDER
14

Plaintiffs, Marlowe and Pam Blake, seek recovery of hospitalization and other
medical expenses which Pam Blake incurred following the birth of their child.
Defendant, Unionmutual Stock Life Insurance Co. of America, admits that Mrs.
Blake was at all times a beneficiary of the policy but contends that it has paid
her claims up to the limits of the policy. The parties agree that there are two
issues: one legal and one factual. The legal issue involves which standard of
review should be applied in reviewing the insurer's actions. The factual issue is
whether the postpartum depression that Pam Blake suffered after giving birth
was a mental illness or a physically based illness with psychiatric
manifestations.

I.
Standard of Review
15

The Court has already ruled that Plaintiff's common law actions have been
preempted by the Employee Retirement Income Security Act, 29 U.S.C. Sec.
1002(1). See Pilot Life v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39
(1987). Defendant argues that under ERISA the standard of review is an
arbitrary and capricious action. Plaintiffs argue that the standard should be the
traditional state law standard which states that where there is an ambiguity, the
interpretation of the policy favoring coverage should be applied. We reject both
contentions and proceed to the merits on a de novo standard of review.
Firestone Tire and Rubber Company v. Bruch, 489 U.S. 101, 109 S.Ct. 948,
103 L.Ed.2d 80 (1989). The Court apologizes for the delay in entering its
decision, but we opted several months ago to postpone it pending resolution of
Bruch. The parties will recall that this Court previously expressed our view that
the arbitrary and capricious standard was inconsistent with the underlying
purpose behind ERISA. Now, guided by the correct standard as enunciated in
Bruch, we proceed to decide the merits of this controversy.

II.
History of the Case
16

In 1984, Marlowe Blake was employed by the law firm of Wallace, Engels,
Pertnoy and Solowsky. As a benefit of his employment, Marlowe and his wife
Pam were insured for health and medical benefits under an insurance policy
issued by Unionmutual Stock Life Insurance Company.

17

On August 13, 1984, Pam Blake gave birth to a healthy baby girl. Three days
later, the family returned to their home, where Pam developed ill feelings
toward the baby and herself. Pam described her condition as feeling like
jumping out of her skin; she stated that she felt this heat in her body; and she felt
itchiness. Pam testified that she was having bad thoughts about hurting the baby
and herself. The couple called Pam's general physician who recommended that
Pam drink a beer to help her relax. Unfortunately, the ill feelings continued. On
August 20, 1984, Pam woke up and banged her head on the wall. The couple
went to her physician's office, where Pam acted like a caged tiger. That same
evening, Pam was admitted to Jackson Memorial Hospital where she remained
until September 25, 1984.

18

Pam was readmitted to Jackson in October, 1984 and remained there until the
end of December, 1984. After her December release from Jackson, she
continued to seek and receive treatment at other hospitals. She spent two weeks
at Highland Park and sought treatment at Hollywood Memorial. Pam has been
out of treatment since January of 1988 and has received no medication since
January, 1987. Today, Pam and the baby are doing well and enjoying a good
relationship.

19

Unionmutual denies that it owes the Blakes any additional medical benefits. It
claims that it has paid up to the policy limits set forth in Section I(2)(b)(iv) of
the insurance agreement. That section limits the amount of medical care
benefits for mental illness to thirty days confinement as an inpatient in a
hospital and $1,000 of treatment received as an outpatient. Unionmutual has
paid the Plaintiffs up to the mental illness section's limitations. Mental illness is
defined in the policy as "any mental, nervous or emotional diseases or
disorders."

20

Plaintiffs argue that the Defendant applied the wrong section. Plaintiffs claim
that Pam's condition was a physically based or caused illness and is covered by
the "sickness" section of the insurance agreement. Sickness is defined in the
policy as an "illness or disease.... It includes pregnancy unless excluded
elsewhere." Therefore, Plaintiffs claim that Pam's illness falls within the
sickness section; and Unionmutual owes Plaintiffs $33,279.55 in unpaid
medical bills.

21

Expert and treating psychiatrists and psychologists testified about the nature of
Pam Blake's illness. Plaintiffs' main witnesses were Dr. Susan Moreno, treating
psychiatrist at Jackson Memorial Hospital, and Dr. James Alexander Hamilton,
a psychiatrist, who has spent time studying the causes and symptoms of
postpartum psychoses. Defendant also relied upon the testimony of Moreno and

Hamilton and called its own expert, Dr. Pinosky, another psychiatrist.
III.
De Novo Review
22

Plaintiffs first contend that irrespective of whether this illness is organically

based, the cause of the illness was pregnancy. As noted above, pregnancy is
included in the sickness section. Because the policy equates pregnancy with
sickness, Plaintiffs argue that all that need be shown is that the pregnancy and
ensuing childbirth caused Pam Blake's illness; therefore, her postpartum
depression was a complication of pregnancy and is included in the sickness
section.

23

Even prior to Mrs. Blake's childbirth and subsequent hospitalization, she

described a period of ten years in her life where she would stuff food into her
mouth--cake or bread--chew it and then spit it out. This occurred approximately
six nights per week. Mrs. Blake paid $15 to $20 per week to meet with a
women's group to discuss diets and images. Mrs. Blake also went to a state
certified social worker for group gestalt. Gestalt was described as a process
whereby an individual sits in one chair, puts their feelings into another chair
and talks to it.

24

Following the birth of her child, Dr. Charles Kram performed a psychological
evaluation of Pam Blake while she was a patient at Jackson Memorial Hospital.
Kram found that Mr. Blake had "longstanding personality problems" prior to
her hospitalization at Jackson Memorial Hospital. Dr. Kram also found that
Pam had been depressed for many years and that she felt inadequate. Dr.
Moreno, a treating physician of Pam's at Jackson, agreed with both of these
findings. Dr. Kram further stated, "this patient may well have been
experiencing a precarious adjustment balance for a period of time extending
well back into her adolescence.... The responsibilities of motherhood may have
appeared for the patient as the proverbial last straw." These findings and the
past history of Mrs. Blake demonstrate that the birth of the child was not the
sole cause of Mrs. Blake's illness. We agree with Dr. Kram's finding that
"motherhood may have appeared as the proverbial last straw."

25

In support of the argument that all the Plaintiffs need show is a covered
sickness caused the ensuing mental treatment, they cite a New York case. In
Prince v. The United States Life Insurance Company, 42 Misc.2d 410, 248
N.Y.S.2d 336 (S.Ct.1964), aff'd, 23 A.D.2d 723, 257 N.Y.S.2d 891 (1965);
aff'd, 17 N.Y.2d 742, 270 N.Y.S.2d 209, 217 N.E.2d 33 (1966), the New York

Court of Appeals affirmed a lower court's decision which held that psychiatric
treatment following the loss of an eye was an "injury or sickness" within the
terms of that policy. We find this case and its reasoning less than persuasive,
especially when Mrs. Blake's prior mental history is considered. For these
reasons, we reject this contention.
26

Plaintiffs next argue that if postpartum psychosis is not a complication of

pregnancy, then it is a physical illness with psychiatric symptoms. They
contend that an organically based illness is not a mental illness within the terms
of the policy, but rather is a sickness. We again disagree.

27

Dr. Moreno diagnosed Pam as suffering from major depression, single episode
with melancholia. Dr. Moreno further stated, "I felt [Pam Blake] was suffering
from postpartum depression which we call major depression, single episode
with psychotic features." When asked whether Pam Blake was suffering from a
mental illness, Dr. Moreno answered, "yes." Dr. Moreno then explained her
answer as meaning "a physical illness, with manifestations of a psychiatric
nature."

28

In speaking of physical illness, Dr. Moreno is referring to imbalances in

serotonin and neopinephrine or perhaps hormonal imbalances as causing Mrs.
Blake's illness. Neither Pam Blake's serotonin and neopinephrine levels nor her
hormonal levels were ever measured so far as this Court is aware. While Dr.
Moreno did state that testing the serotonin and neopinephrine levels is difficult,
she did not state why Mrs. Blake's hormonal levels were never measured. Dr.
Moreno's testimony simply failed to prove a physical illness caused Mrs.
Blake's psychiatric hospitalization.

29

Dr. Hamilton testified generally about Pam Blake's symptoms marching in step
with known changes in physiology that occur after childbirth. For example, he
spoke of the brief latent period between delivery and the onset of the disease;
that patients suffering from postpartum psychosis generally have a good
prognosis; that electroconvulsive therapy while frequently effective in other
forms of psychoses is frequently ineffective here; and finally he testified
concerning the hormonal changes in estrogen and progesterone which occur
after childbirth.

30

First, we observe that Dr. Hamilton generated his opinions nearly four years
after Pam gave birth to the child, and significantly, a day before the trial began.
Moreover, even if her symptoms did march hand in hand with known changes
in physiology, the Court does not find such medical generations sufficiently

persuasive to show an organic mental disorder in this case. While we are happy
to note that today Pam Blake is doing fine, the fact that postpartum patients
generally have a good prognosis does not prove an organic disorder.
31

Dr. Moreno stated that Pam Blake responded well to the electroconvulsive
therapy she received, a statement which would contradict Dr. Hamilton's view
that electroconvulsive therapy would be ineffective for an organic disorder
because it (ECT) would fail to clear up the underlying problem (hormonal
imbalance). While Pam did relapse from her ECT treatment, Dr. Moreno
testified that it is not uncommon for people who receive ECT for depression at
other times in their lives to also relapse. The fact the postpartum depression
may be self-limiting does not convince us that Pam Blake suffered an organic
mental illness.

32

Finally, while hormonal changes may be an important cause of postpartum

depression, no proof has been offered in this case to show that the levels in Mrs.
Blake were abnormal following childbirth. Dr. Hamilton, in a letter dated
November 27, 1987, stated "the [Defendant's] motion for summary judgment
selects a very strong point from Defendant's expert, Pinoski: the unproven
possibility that hormonal imbalances may have been associated with Mrs.
Blake's condition does not change the fact that she was suffering from a mental
disorder--we cannot deny the latter--all we could say at best is that there is
substantial information to the effect that this mental disorder is one which is
caused by organic changes, which in turn follow childbearing."

33

One test that was performed on Mrs. Blake was a cortisol suppression test. It
showed her serum cortisol levels to have reached 33. Any reading above 5 is
considered by Dr. Moreno of Jackson Memorial Hospital to be abnormal. An
abnormal serum cortisol level is not thought to be the cause of any mental
illness, but rather abnormal levels are found in a variety of mental illnesses,
including depression and bulimia. This test does not convince us that Mrs.
Blake's illness was an organic illness with psychiatric manifestations.

34

Finally, we agree with Defendant's expert, Dr. Pinosky, that Mrs. Blake
suffered from a mental disorder following her pregnancy. During Dr. Pinosky's
twenty-five years of practice as a licensed psychiatrist, he has diagnosed more
than 100 postpartum psychotic patients. Dr. Pinosky's opinion was that the
policy's definition of mental illness as any mental, nervous or emotional
diseases or disorders comports with Mrs. Blake's condition.

35

Dr. Pinosky placed great importance on the finding that Mrs. Blake had

suffered from an eating disorder known as bulimia, since about the age of
fourteen. Dr. Pinosky testified that bulimia is a mental disorder and those who
suffer from it have an inordinately high association of developing a major
effective disorder later in life. Dr. Pinosky contradicted Dr. Hamilton's
testimony that postpartum depression tends to be self-limiting and therefore
distinguishable from other mental disorders. He opined that individuals
suffering from depression improve in general, not just those who suffer from
postpartum psychoses.
36

The Court concurs with Dr. Pinosky that Mrs. Blake was not suffering from
physical illness with psychiatric manifestations. We agree with Dr. Pinosky that
Mrs. Blake suffered from a mental illness as defined in the terms of the
insurance agreement.

37

In summary, Plaintiffs ask the Court not to consider the treatment Mrs. Blake
received, but instead to look to the causes of the illness. Because of Plaintiffs'
failure to prove an organic causation for this illness, we find that the treatment
Mrs. Blake received is only more convincing proof that she suffered a mental
illness within the terms of the policy. All of the hospitalizations of Mrs. Blake
were in psychiatric units. She was treated primarily by psychiatrists receiving
well recognized psychiatric treatment, including individual psychotherapy,
psychoactive drug therapy, electroconvulsive therapy and participation in group
sessions. To borrow from a euphuism, "if it looks like a duck, walks like a
duck, quacks like a duck, then it's probably a duck." Here, no physician
rendered Pam Blake treatment different than that rendered to other patients
suffering from other forms of mental disorder. Her past medical history is
consistent with such treatment. To ignore such treatment would be to ignore the
realities of the evidence in favor of sympathy. Our oath prevents us from such a
course.

IV.
Conclusion
38

For these reasons, the Court concludes that the Plaintiffs have failed to
demonstrate that Pam Blake suffered an organic mental illness under our de
novo review. Indeed, we find that she suffered a "mental illness" within the
terms of the policy; and, accordingly Unionmutual was correct in applying the
limitations of the mental illness section to Plaintiffs' claims. Accordingly, we
will enter judgment for the Defendant.

39

DONE and ORDERED in Chambers, at Miami, Florida, this 10th day of

March, 1989.
/s/ Thomas E. Scott
40
THOMAS E. SCOTT
UNITED STATES
DISTRICT JUDGE
Copies mailed to:
Michael S. Olin, Esquire
Robert A. Wainger, Esquire

See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit

**

Honorable Virgil Pittman, Senior U.S. District Judge for the Southern District
of Alabama, sitting by designation

Sec. 1132. Civil enforcement

(a) Persons empowered to bring a civil action
A civil action may be brought-(1) by a participant or beneficiary-(B) to recover benefits due to him under the terms of his plan, to enforce his
rights under the terms of the plan, or to clarify his rights to future benefits under
the terms of the plan;