Using ERISA Plan Benefits for paying Business Debts Wrongful

Defalcation of ERISA Plan Not Dischargeable

The United States Department of Labor (DOL) obtained a pre-bankruptcy judgment against debtor Michael Harris in federal district court. The judgment provided that, under the Employee Retirement Income Security Act of 1974 (ERISA), Harris breached his fiduciary duty when the company he managed as the chief executive officer (CEO) failed to remit funds withheld from its employees’ paychecks for their health insurance plan. The DOL filed an adversary proceeding in Harris’s Chapter 7 bankruptcy to have that judgment debt declared nondischargeable as a debt for defalcation while acting in a fiduciary capacity under 11 U.S.C. § 523(a)(4). The bankruptcy court granted summary judgment in the DOL’s favor, declaring the debt nondischargeable.

In In re: Michael P. Harris, As surety for Faribault Mills Inc., As surety for Faribault Woolen Mill Company Debtor, U.S. Department of Labor Appellee v. Michael P. Harris, No. 17-1261, United States Court of Appeals For the Eighth Circuit (August 3, 2018) Harris appealed the findings and claimed he could discharge the debt owed to the DOL.

BACKGROUND

Healthcare Plan

In 2001, Harris became CEO, President, and Chairman of the Board of Directors of Faribault Woolen Mills Company (“Faribault”), a blanket manufacturer. He owned 0.3 percent or less of Faribault’s outstanding stock and had common options.

Faribault sponsored the Faribault Woolen Mills, Inc. Fully Insured Hospital Life Welfare Plan (“Plan”) to provide health insurance for its employees. The Plan contracted with HealthPartners Health Insurance Company (“HealthPartners”) to provide healthcare benefits for Plan participants. Employee contributions funded 100 percent of the health insurance premiums. The premiums were due to HealthPartners on the first of every month to provide insurance coverage for that month. Faribault withheld the health insurance premiums from the employee-participants’ paychecks and then remitted the amount owed to HealthPartners from its general operations account on the first of each month. (Faribault also paid its general corporate expenditures from the same general operations account.) Harris knew that the payments were due monthly.

On at least two occasions in 2008—January 29 and November 26—Faribault issued checks to HealthPartners that Harris had signed that were subsequently returned by Faribault’s bank to HealthPartners due to insufficient funds. Following the return of those checks, Faribault ultimately remitted payment of the insurance premiums to HealthPartners without loss of Plan insurance coverage.

Faribault issued a check on January 27, 2009, signed by Harris, to HealthPartners for $22,593.02 to pay Plan premiums owed for January 2009. That check also bounced. In a letter dated February 28, 2009, HealthPartners advised it would cancel the Plan if Faribault did not pay in full.

Meanwhile, on February 27, 2009, Faribault issued a check that Harris signed to HealthPartners for $19,466.91 to pay the February 2009 Plan premiums. HealthPartners returned the February 27 check to Faribault. In an accompanying letter dated March 3, 2009, HealthPartners informed Dorr, Faribault’s CFO, that it would accept only wire payments due to Faribault’s prior insufficient-funds checks.

When Faribault did not remit the overdue payments, HealthPartners canceled the Plan’s insurance policy on April 1, 2009, retroactive to January 31, 2009, due to non-payment of premiums. Faribault thus never remitted $55,040.61 withheld from its employees’ paychecks for insurance premiums from January 9, 2009, to March 20, 2009. Also, from January to March 2009, Faribault issued checks to other creditors from the general operations account containing commingled Plan premiums.

District Court Proceedings

On December 12, 2012, the DOL filed a complaint against Harris in federal district court, alleging that he violated ERISA. Specifically, the DOL asserted Harris failed to remit the $55,040.61 in withheld employee earnings to pay for the Plan’s healthcare premiums to HealthPartners. The DOL alleged that Harris’s failure to use the employees’ withheld wages to pay the HealthPartners premium breached his duty of loyalty to the Plan participants, in violation of ERISA § 404(a)(1)(A), 29 U.S.C. § 1104(a)(1)(A).

Following a bench trial, the district court held that Harris breached his fiduciary duty of loyalty under ERISA. The district court first determined that Harris acted as an ERISA fiduciary. According to the court, the amounts withheld from Faribault employees’ paychecks for Plan premium payments became “‘plan assets,’ and they became so as of the date on which the employees’ wages were paid (i.e., the date on which the employees’ contributions were withheld).”

Second, the district court found “that Harris breached his duty of loyalty to the Health Plan by failing to remit plan assets to the Health Plan and instead using those assets to pay corporate creditors and personal expenses.”

The district court determined that Harris’s fiduciary breach caused the $55,040.61 in losses that the Plan suffered. The court characterized the evidence as showing “that an amount of money significantly higher than the amount of premiums that was due to HealthPartners was removed from the account from which premiums were paid and was neither paid to HealthPartners nor returned to the employees, but instead was used to pay other corporate expenses or debts.” The district court found Harris liable to the Plan for $55,040.61 in restitution and, with prejudgment interest, awarded a total of $67,839.60. Harris did not appeal.

Bankruptcy Proceedings – 1. Bankruptcy Court

Harris sought bankruptcy to avoid the debt to the DOL who then filed an adversary proceeding in Harris’s Chapter 7 bankruptcy to have the judgment debt declared nondischargeable. The DOL wanted Harris’s debt to be considered the result of defalcation while acting in a fiduciary capacity under 11 U.S.C. § 523(a)(4).

The DOL moved for summary judgment, arguing that (1) the collateral-estoppel doctrine gave preclusive effect in the bankruptcy case to the district court’s factual and legal determinations, and (2) Harris’s debt was nondischargeable because it arose from “defalcation while acting in a fiduciary capacity” based on those factual and legal determinations.

The bankruptcy court granted summary judgment in the DOL’s favor, declaring the debt nondischargeable.

Finally, the bankruptcy court determined that Harris had committed defalcation under § 523(a)(4). According to the court, “several undisputed facts suggest that [Harris] was willfully blind to a substantial and unjustifiable risk that his conduct will turn out to violate a fiduciary duty, thereby qualif[ying] his conduct as defalcation under section 523(a)(4).”

The bankruptcy court thus held that Harris’s ERISA judgment debt was nondischargeable under § 523(a)(4).

Bankruptcy Appellate Panel

The BAP first determined that the money withheld from the employees’ paychecks constituted a trust res because “Faribault was holding funds that actually belonged to someone else . . . and it had a duty to use the employees’ money to make the premium payments.”

The BAP determined that Harris committed defalcation as to the Plan funds based on the undisputed facts. Specifically, the BAP concluded that Harris acted either intentionally or with gross recklessness under § 523(a)(4).

Harris’ failure to offer a justifiable reason for his decision not to use the remaining funds for the benefit of the employees for whom they were held in trust, the BAP held that the Bankruptcy Court properly concluded that there was no genuine issue of material fact as to his intent, and that DOL was entitled to judgment as a matter of law.

DISCUSSION

Harris argued that, based on the undisputed facts, he was not acting in a fiduciary capacity under § 523(a)(4) when the alleged defalcation occurred.

Fiduciary Capacity

Here, Harris does not challenge the district court’s factual findings that (1) “a plan asset was created once employee funds were withheld for insurance payments on January 9, 2009, and that, since [Harris] had authority regarding those assets, he was an ERISA fiduciary,” and (2) Harris “exercised authority over the plan assets in March of 2009.”

The stipulated facts, as well as the unchallenged facts found by the district court, show that Harris exercised control over Plan assets before he diverted any employee contributions; therefore, the fiduciary relationship preexisted the debt.

Accordingly,the appellate court affirmed the bankruptcy court’s conclusion that Harris had fiduciary obligations regarding the funds that had been withheld from wages for payment to HealthPartners.

Defalcation

Defalcation under § 523(a)(4) requires “a culpable state of mind” with a “knowledge of, or gross recklessness in respect to, the improper nature of the relevant fiduciary behavior.”

Harris knew he had an obligation to remit the withheld employee contributions to HealthPartners but instead chose to prioritize payments of corporate expenses and creditors, including payments on his own personal line of credit.

Harris was not in contact with Faribault’s employees about the health insurance premiums; they had no knowledge that Faribault had fallen behind in paying those premiums. Harris prioritized bills in his own favor, paying his own line of credit before paying anything toward the health insurance premiums

Harris misused the Plan’s assets for his own and Faribault’s purposes. Harris committed defalcation in late March 2009 when he chose to use plan assets to pay himself and other corporate expenses instead of remitting those assets to HealthPartners.

ZALMA OPINION

What Harris did as an ERISA fiduciary was evil. He took money from his employees, held it for his own purposes, paid company bills with it, and then, with utmost “chutzpah” sought to discharge the debt with bankruptcy. It is amazing to me that the court did not refer him to the Department of Justice for prosecution of his act of theft and defalcation of funds belonging to the ERISA Plan.


© 2018 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Books from Full Court Press

Insurance Law Deskbook: Learn the insurance basics that are essential to every civil practitioner. The Insurance Law Deskbook is intended to help law students, practitioners, insurance lawyers, professional claims personnel, insured persons, and anyone else involved in insurance. The book, published for the first time under Full Court Press, includes the full texts or digests of insurance-related decisions of the U.S. Supreme Court, the U.S. District Courts of Appeal, state appellate courts, and foreign courts that have molded the American insurance law, as well as vital explanatory chapters, historical context, form letters, and more.

California Insurance Law Deskbook: California has long led the way when it comes to insurance jurisprudence in the United States, and few know more about California insurance law than Barry Zalma. The California Insurance Law Deskbook is intended to help law students, practitioners, insurance lawyers, professional claims personnel, insured persons, and anyone else involved in insurance. Similar to Barry Zalma’s general Insurance Law Deskbook, this title focuses on the state where the author has long resided and practiced as an expert in California law. The book, published for the first time under Full Court Press, includes the full texts or digests of insurance-related decisions of the U.S. Supreme Court, the U.S. District Courts of Appeal, and California appellate courts, as well as vital explanatory chapters and historical context.

Insurance Bad Faith and Punitive Damages Deskbook: Understand the relationship between insurance, the tort of bad faith, and why punitive damages are awarded to punish insurers. Previously, a person suing an insurance company in the United States could only recover contract damages, but when the tort of bad faith was created by the courts contract law was enormously affected, allowing insureds to sue insurers for both contract and tort damages, including punitive damages. Read a thoughtful analysis of how punitive damages apply in the United States to insurance bad faith suits, and why some states allow judges and juries to award punitive damages against insurers in civil litigation.

Mr. Zalma’s books available as Kindle books or paperbacks at Amazon.com can be reached at http://zalma.com/zalma-books/

Mr. Zalma’s reports can be found on Tumbler at https://www.tumblr.com/search/bzalma  on Facebook at https://www.facebook.com/barry.zalma and you can follow him on Twitter at https://twitter.com/bzalma

Legal Disclaimer:

The author and publisher disclaim any liability, loss, or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this blog. The information provided is not a substitute for the advice of a competent insurance, legal, or other professional. The Information provided at this site should not be relied on as legal advice. Legal advice cannot be given without full consideration of all relevant information relating to an individual situation.

 

Share

About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
This entry was posted in Zalma on Insurance. Bookmark the permalink.