Daniel F. GREELEY, Plaintiff-Appellee, v. FAIRVIEW HEALTH SERVICES; Diane Iorfida, Defendants-Appellants, 479 F.3d 612

BRIGHT, Circuit Judge. The district court granted

summary judgment in favor of appellee, Daniel F. Greeley (“Greeley”), on his claims against his former employer, Fairview Health Services (“Fairview”), under ERISA for a faulty

summary plan description (“SPD”). Fairview appeals and we reverse. The issue in this case arises from a single typographical error. On February 20, 1998, Fairview stated in a memo that pathologists such as Greeley would be eligible for long-term disability benefits until they reached the age of sixty-seven. The accompanying

summary of benefits did not contradict this representation. The benefit plan, which was never mailed to employees, however, provided for such benefits only until the age of sixty-five. In December 1998, Greeley and his attorney, in preparation for an application for disability benefits, received a copy of Greeley’s long-term disability plan. This document stated that disability benefits would be provided until age sixty-five or seventy, or for one to five years, depending on the age of disability.

By 1999, Greeley had realized that the plan documents conflicted with the memo, but assumed the memo controlled because it described “enhanced” benefits. In 1999, Greeley quit practicing because of a disabling medical condition. In January 2001, he inquired about the maximum benefit period and a human resources employee sent him a memo explaining that benefits expired at age sixty-five. In October 2003, Greeley’s attorney sent Fair-view a letter requesting assurances that benefits would continue until age sixty-seven, to which Fairview never responded.

In October 2004, Fairview informed Greeley that because he had reached the age of sixty-five, his benefits were exhausted. Greeley filed suit in the district court in December 2004, asserting improper denial of benefits and fraud. On cross motions for

summary judgment, the district court granted

summary judgment for Greeley on his ERISA claim and for Fairview on the fraud claim. Fairview argues on appeal that the district court erred as a matter of law by concluding that:

(1) Greeley’s action was not barred by the applicable two-year statute of limitations; (2) the 1998 memo and benefits

summary should be construed as a “faulty” SPD; and

(3) Greeley was prejudiced by the SPD. Because the district court erred in its determination that Greeley was prejudiced by the memo, we reverse the district court’s grant of

summary judgment in favor of Greeley. The district court correctly stated that in order to recover under a faulty SPD, Greeley must show that he was prejudiced by it. The court concluded that Greeley was prejudiced and explained the prejudice standard it applied as follows: It is not clear what showing of prejudice is required under Eighth Circuit law. See Antolik, 383 F.Supp.2d at 1177.

The Second Circuit requires a plan participant to show that he or she “was likely to have been harmed as a result of a deficient SPD,” and allows the employer to rebut this showing “through evidence that the deficient SPD was in effect a harmless error.” Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 113 (2d Cir.2003). The Court adopts this standard and applies it here. Greeley v. Fairview Health Services, 2006 WL 1851132, 3-4N (2006). The district court erred by adopting a “likely harm” prejudice standard.

In order for an employee to recover from his employer for a faulty SPD, this court requires the employee to show he relied on its terms to his detriment. In Maxa v. John Alden Life Ins. Co., 972 F.2d 980 (8th Cir.1992), we stated: “ ‘to secure relief on the basis of a faulty

summary plan description, the claimant must show some significant reliance on, or possible prejudice flowing from the

summary.’ ” Id. at 984 (quoting Anderson v. Alpha Portland Indus., Inc., 836 F.2d 1512, 1520 (8th Cir.1988)). The appellant, Maxa’s estate, argued that it was prejudiced by having to pay substantial unreimbursed expenses. Id. The court stated that Maxa’s estate appears to have suffered a loss because Maxa failed to enroll in Medicare, but that alone was insufficient for recovery: Maxa’s estate must have shown detrimental reliance. See id. Indeed, we recently reversed the decision relied upon by the district court, Antolik v.

Saks Inc., 383 F.Supp.2d 1168 (S.D.Iowa 2005), explaining that there was no actionable misrepresentation by the employer and “no reasonable detrimental reliance by ... employees who continued to work without confirming exactly what severance benefits were available.... ” Antolik v. Saks, Inc., 463 F.3d 796, 802 (8th Cir.2006); see also Anderson, 836 F.2d at 1520 (requiring a showing of detrimental reliance).

Detrimental rebanee means that the plaintiff took action, resulting in some detriment, that he would not have taken had he known that the terms of the plan were otherwise or that he failed, to his detriment, to take action that he would have taken had he known that the terms of the plans were otherwise. Maxa, 972 F.2d at 984 (citing and quoting Monson, 739 F.2d at 1302). Therefore, in the instant case, assuming arguendo that the February 1998 memorandum was a faulty SPD, Greeley must show that he took action or failed to take action, that he would not have otherwise, resulting in some detriment.

See Maxa, 972 F.2d at 984; cf. Dodson v. Woodmen of the World Life Ins. Soc’y, 109 F.3d 436, 439 (8th Cir.1997) (finding prejudice because employee would have filed or preserved claim had SPD informed of benefits’ expiration deadlines). Greeley has failed to make a showing of detrimental reliance. Greeley testified that he had no choice but to go on disability because of the condition of his lungs. The district court specifically stated, “Greeley offered no evidence that he changed his course of action or otherwise relied on the faulty SPD.” Greeley, at 3.

The district court observed the financial harm to Greeley that resulted from the nonpayment of benefits for two years, but we have previously determined that such financial loss, without detrimental reliance, provides an insufficient basis for recovery. See Maxa, 972 F.2d at 984. Accordingly, we reverse the district court’s grant of

summary judgment in favor of Greeley and remand for further proceedings consistent with this opinion. . Because we reverse the district court's decision on the basis of prejudice, we do not here reach the merits of Fairview's statute of limitations or other arguments for reversal. . The court may also infer detrimental reliance from egregious misrepresentations. See Monson v. Century Mfg. Co., 739 F.2d 1293, 1302 (8th Cir.1984).