Krebsbach v. Travelers Pension Plan, The

U.S. District Court, District of Minnesota November 14, 2024

Trial Court Opinion

            UNITED STATES DISTRICT COURT                             
                DISTRICT OF MINNESOTA                                


Judith M. Krebsbach,                     Civil No. 24-257 (DWF/TNL)       

          Plaintiff,                                                 

v.                                                                        
                                            MEMORANDUM               
The Travelers Pension Plan and The          OPINION AND ORDER             
Travelers Companies, Inc., as Plan                                        
Administrator and Sponsor of The                                          
Travelers Pension Plan,                                                   

          Defendants.                                                


                    INTRODUCTION                                     
This matter is before the Court on Defendants The Travelers Pension Plan and The 
Travelers Companies, Inc.’s (“Defendants”) motion for judgment on the pleadings.  (Doc. 
No. 30.)  Plaintiff Judith M. Krebsbach opposes the motion.  (Doc. No. 39.)  For the 
reasons set forth below, the Court denies in part and grants in part Defendants’ motion. 
                     BACKGROUND                                      
Krebsbach asserts claims against Defendants under the Employee Retirement 
Income Security Act of 1974,

29 U.S.C. § 1001

, et seq. (“ERISA”), arising out of The 
Travelers Pension Plan (“Plan”) under which Krebsbach is covered.  (Doc. No. 24 (“Am. 
Compl.”) ¶¶ 1, 5.)                                                        
Krebsbach began working for The Travelers Companies, Inc. (formerly known as 
The St. Paul Companies, Inc.) almost fifty years ago and is still employed there today.  
(Am. Compl. ¶ 6.)  Krebsbach is a participant in Travelers’ pension plan, which is a 
qualified defined benefit plan under § 401(a) of the Internal Revenue Code.  (Id. ¶ 7.)  
Both parties agree that Krebsbach is entitled to the larger lump-sum benefit available, but 
the parties disagree on how to calculate the benefits.  (Id. ¶ 58.)       

Krebsbach invokes two separate provisions of ERISA in her two-count complaint.  
Krebsbach asserts a “Claim for Benefits Due” (“Count I”) under

29 U.S.C. § 1132

(a)(1)(B), which provides that a civil action may be brought by a participant or 
beneficiary “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.”  (Id. ¶ 120.)  This claim is to determine which calculation is correct and 
therefore what benefit Krebsbach is owed.  (Id. ¶¶ 120-34.)  Krebsbach also asserts 
“Breaches of Fiduciary Duty” (“Count II”) under

29 U.S.C. § 1132

(a)(3) which entitles 
beneficiaries or participants to initiate a civil action “(A) to enjoin any act or practice 
which violates any provision of this subchapter or the terms of the plan, or (B) to obtain 

other appropriate equitable relief (i) to redress such violations or (ii) to enforce any 
provisions of this subchapter or the terms of the plan.”  (Id. ¶ 137.)  Krebsbach seeks 
relief under three such alleged breaches.  First, Krebsbach alleges that Defendants 
“breached [their] duty of loyalty owed to Krebsbach by choosing parts of the Plan most 
favorable to Travelers.”  (Id. ¶ 139.)  Krebsbach seeks “appropriate equitable relief, 

including to be made whole under the surcharge remedy or reformation of the Plan.”  
(Id.)  Second, Krebsbach alleges that Defendants breached their “fiduciary duty to 
provide [a Summary Plan Description (“SPD”)] that complied with

29 U.S.C. § 1022

(a).”
(Id. ¶ 144.) Krebsbach seeks “appropriate equitable relief including to be made whole
under the surcharge remedy or reformation of the Plan to be consistent with the SPD.”
(Id.) Third, Krebsbach alleges that Defendants breached their fiduciary duty by “fail[ing]
to provide Krebsbach with prompt, complete, and accurate information.” (Id. ¶ 146.)

Krebsbach seeks “appropriate equitable relief, including a remand to permit Krebsbach a
full and fair review of her claim and attorneys’ fees and other costs caused by Travelers’
breach.” (Id.)
Defendants move for partial judgment on the pleadings with respect to Count II,
arguing that Krebsbach is not entitled to any remedy which she seeks for the alleged

breaches of fiduciary duty. (Doc. No. 30 at 1.) Krebsbach opposes Defendants’ motion.
(Doc. No. 39.)
DISCUSSION
I. Legal Standard
A party may move for judgment on the pleadings at any point after the close of the

pleadings, so long as it moves early enough to avoid a delay of trial. Fed. R. Civ. P.
12(c). “Judgment on the pleadings is appropriate only when there is no dispute as to any
material facts and the moving party is entitled to judgment as a matter of law . . . .” See
Ashley County v. Pfizer, Inc.,

552 F.3d 659, 665

 (8th Cir. 2009) (quoting Wishnatsky v. 
Rovner,

433 F.3d 608

, 610 (8th Cir. 2006)).  The Court evaluates a motion for judgment 

on the pleadings under the same standard as a motion brought under Federal Rule of Civil 
Procedure 12(b)(6).  See id.                                              
In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in 
the complaint to be true and construes all reasonable inferences from those facts in the 
light most favorable to the complainant.  Morton v. Becker,

793 F.2d 185, 187

 (8th Cir. 
1986).  In doing so, however, a court need not accept as true wholly conclusory 
allegations, Hanten v. Sch. Dist. of Riverview Gardens,

183 F.3d 799

, 805 (8th Cir. 1999), 

or legal conclusions drawn by the pleader from the facts alleged, Westcott v. City of 
Omaha,

901 F.2d 1486, 1488

 (8th Cir. 1990).                               
To survive a motion to dismiss, a complaint must contain “enough facts to state a 
claim to relief that is plausible on its face.”  Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570

 
(2007).  Although a complaint need not contain “detailed factual allegations,” it must 

contain facts with enough specificity “to raise a right to relief above the speculative 
level.”

Id. at 555

.  As the Supreme Court reiterated, “[t]hreadbare recitals of the elements 
of a cause of action, supported by mere conclusory statements,” will not pass muster 
under Twombly.  Ashcroft v. Iqbal,

556 U.S. 662, 678

 (2009) (citing Twombly,

550 U.S. at 555

).  In sum, this standard “calls for enough fact[s] to raise a reasonable expectation that 

discovery will reveal evidence of [the claim].”  Twombly,

550 U.S. at 556

. 
A.   Analysis                                                        
Defendants identify the following potential issues with Krebsbach’s claims under 
Count II:  (1) Krebsbach requests relief that is improperly duplicative of the relief sought 
under Count I; and (2) neither surcharge nor reformation are available remedies for legal 

theories asserted by Krebsbach.1  (Doc. No. 33 at 3, 12.)                 

1    Defendants also claim that there was no breach of duty related to information and 
explain the extensive communications between Krebsbach and Travelers.  (Doc. No. 33 
at 21-25.)  Similarly, Defendants argue that the duty of loyalty was not breached with 
respect to interpretation of the Plan.  (Id. at 16.)  Both arguments are on the merits of the 
     1.   Equitable Relief Under ERISA Generally                     
ERISA § 502(a)(3) allows a participant, beneficiary, or fiduciary “to obtain other 
appropriate equitable relief” to redress violations of ERISA “or the terms of the plan.”

29 U.S.C. § 1132

(a)(3).  In CIGNA Corp. v. Amara, the Supreme Court clarified the 
scope of “appropriate equitable relief” available pursuant to

29 U.S.C. § 1132

(a)(3).

563 U.S. 421, 438-42

 (2011).  The types of relief available under this provision of ERISA 
include those that “were typically available in equity.”

Id.

 at 439 (quoting Sereboff v. Mid 
Atl. Med. Servs., Inc.,

547 U.S. 356, 361

 (2006)).                        

     2.   Duplicative Relief                                         
          a.   Make-Whole Relief                                     
Defendants first argue that Krebsbach will be made whole by Count I alone, which 
would render Count II improperly duplicative.  (Doc. No. 33 at 3.)  Defendants 
emphasize that Krebsbach “seeks this additional relief even if the Court determines that 

the Plan correctly denied Krebsbach’s claim for benefits.”  (Id. at 3.)  “Simply put, 
because Count I will make her whole, Krebsbach has suffered no additional harm for 
which a remedy is available under Count II.”  (Id. at 4.)                 
Krebsbach asserts that “the Eighth Circuit and district courts have made clear that 
plaintiffs are permitted to have alternative claims, even where the relief sought is the 

benefits owed.”  (Doc. No. 39 at 15.)  Krebsbach points to cases Silva v. Metropolitan 
Life Insurance Co. and Jones v. Aetna Life Insurance Co., in which the Eighth Circuit 

claims, which should not be addressed in a motion for judgment on the pleadings.  The 
Court will therefore wait to address these points until appropriate.      
held that plaintiffs may plead duplicate claims so long as the claims are under different 
theories of liability.  (Id.; Silva,

762 F.3d 711, 726

 (8th Cir. 2014); Jones,

856 F.3d 541, 547

 (8th Cir. 2017).)  Krebsbach also points out that the District of Minnesota has 

precedent allowing a claim for breach of fiduciary duty even when the claim of benefits 
due failed.  (Doc. No. 39 at 16; Lanpher v. Metro. Life Ins. Co.,

50 F. Supp. 3d 1122

 
(D. Minn. 2014).)                                                         
The Eighth Circuit has explained that such plaintiffs can plead “alternative—as 
opposed to duplicative—theories of liability” as long as the plaintiff does not ultimately 

obtain duplicate recoveries.  Silva,

762 F.3d at 726

.  In evaluating whether a 
§ 1132(a)(1)(B) benefits claim renders a § 1132(a)(3) fiduciary-duty claim improperly 
duplicative, the Eighth Circuit affirmed that “Amara implicitly determined that seeking 
relief under (a)(1)(B) does not preclude seeking relief under (a)(3).”  Jones,

856 F.3d at 544-47

; see also Lanpher,

50 F. Supp. 3d at 1148

 (reading Silva to say that if the court 

concluded that plaintiff was not entitled to relief under his claim for benefits due, relief 
would still be available under the fiduciary duty claim).  Jones upheld Silva’s holding that 
“so long as two claims ‘assert different theories of liability,’ plan beneficiaries ‘may plead 
both.’”  Jones,

856 F.3d at 547

 (quoting Silva,

762 F.3d at 728

 & n.12).  Because claims 
for benefits due and claims for breaches of fiduciary duty arise from separate theories of 

legal liability, they are not duplicative.  See Christoff v. Unum Life Ins. Co. of Am., No. 
17-3512,

2018 WL 4110963

, at *3-4 (D. Minn. Aug. 29, 2018).               
Procedural posture is important when evaluating whether ERISA claims under 
§ 1132(a)(1)(B) and § 1132(a)(3) are duplicative: “At the motion to dismiss stage . . . it is 
difficult for a court to discern the intricacies of the plaintiff’s claims to determine if the 
claims are indeed duplicative, rather than alternative, and determine if one or both could 
provide adequate relief.”  Silva,

762 F.3d at 727

.  Thus, courts should permit ERISA 

plaintiffs to plead alternative claims advancing distinct legal theories under these 
provisions.  See

id. at 727-28

.  Krebsbach emphasizes this procedural point:  “Plaintiff 
has not had the opportunity to conduct discovery on the Fiduciary Breach claims nor to 
conduct discovery to assure the Record provided by Travelers is the complete Record as 
defined by ERISA regulations.”  (Doc. No. 39 at 12.)  Krebsbach identifies no specific 

discovery that is missing, but surmises that more relevant documents exist.  (Id. at 33-38.)  
While the Court fails to see what new information will come forward through discovery, 
the Court acknowledges that plaintiffs should be permitted to conduct discovery.  
Krebsbach’s claim for benefits due under § 1132(a)(1)(B) does not preclude 
recovery under § 1132(a)(3) for alleged breach of fiduciary duty.  However, any claim for 

benefits due under § 1132(a)(3) is precluded, as that would duplicate the remedy under 
§ 1132(a)(1)(B).  Krebsbach requests only equitable remedies under Count II, so her 
claims are not precluded.                                                 
          b.   SPD Claim                                             
Specific to Krebsbach’s claim that the SPD was insufficient, there is no issue of 

duplication.  Because SPDs are not part of a plan itself but simply documents explaining 
the plan, SPDs are not enforced through typical ERISA benefits due claims.  Amara,

563 U.S. at 438

.  As the Amara Court stated:                                  
The  relevant  substantive  provisions  of  ERISA  do  not  set  forth  any 
particular standard for determining harm.  They simply require the plan 
administrator to write and to distribute written notices that are “sufficiently 
accurate and comprehensive to reasonably apprise” plan participants and 
beneficiaries of “their rights and obligations under the plan.”  Nor can we 
find  a  definite  standard  in  the  ERISA  provision,  §  502(a)(3)  (which 
authorizes the court to enter “appropriate equitable relief” to redress ERISA 
“violations”).  Hence any requirement of harm must come from the law of 
equity.                                                              

Id. at 443 (citations omitted) (quoting

29 U.S.C. §§ 1022

(a), 1132(a)(3)).
If the Court finds that Defendants’ SPD was, in fact, insufficient, Krebsbach’s only
available remedy is in equity. Therefore, there is no duplication between a potential
remedy of benefits due and the lost right of information in this case.
c. Attorneys’ Fees
Relatedly, Defendants argue that attorneys’ fees are already a possible award for
miscalculation of benefits under ERISA § 502(g), so therefore this relief is within Count I
and would be duplicative to award through Count II. (Doc. No. 33 at 17.) Krebsbach
rebuts that the attorneys’ fees and other costs are a result of denying information, not
miscalculation of benefits, so those costs would not be awarded under ERISA’s attorneys’
fee section. (Doc. No. 39 at 38.)
Defendants do not dispute the legal theory behind this claim. Defendants instead
focus on the question of whether they breached their fiduciary duty to provide full
information, arguing that there was no such breach because they were very
communicative with Krebsbach. (Doc. No. 33 at 21-25.) Krebsbach responds that
Defendants’ argument is on the merits, which is inappropriate for a motion for judgment
on the pleadings. (Doc. No. 39 at 33.) The Court agrees that Defendants are making
arguments beyond this phase of litigation. See supra note 1.
Krebsbach is correct that fees in this case fall under the umbrella of equitable

remedies. In Christoff, the Court distinguished between remedies under the plan and
remedies for failure to fulfill fiduciary obligations. Christoff,

2018 WL 4110963

, at *4.  
Fees awarded for the litigation of benefits due fall into remedies under the Plan and are 
therefore duplicative.  Attorneys’ fees sought for Defendants’ alleged breach of fiduciary 
duty by failing to provide prompt, complete, and accurate information fall into the second 

category.  Krebsbach’s Count II request for attorneys’ fees is therefore not duplicative of 
relief under Count I.                                                     
     3.   Surcharge                                                  
Defendants next argue that Krebsbach is not entitled to the remedy of surcharge 
because Krebsbach fails to show actual harm from the alleged breaches of fiduciary duty.  

(Doc. No. 33 at 13.)                                                      
Relief available under ERISA includes the equitable remedy of “surcharge” or 
“make-whole relief” through which “[e]quity courts possessed the power to provide relief 
in the form of monetary ‘compensation’ for a loss resulting from a trustee’s breach of 
duty, or to prevent the trustee’s unjust enrichment.”  Amara,

563 U.S. at 441

-42 (quoting 

Restatement (Third) of Trusts § 95 cmt. c (Am. L. Inst. 2012)).  The Supreme Court 
explained that “[t]he surcharge remedy extended to a breach of trust committed by a 
fiduciary encompassing any violation of a duty imposed upon that fiduciary.”  Id. at 442.  
Post-Amara, the Eighth Circuit has clarified that ERISA plaintiffs may seek “make-
whole, monetary relief under § 1132(a)(3).”  Silva,

762 F.3d at 724

.  To award surcharge, 
the plaintiff must have suffered actual harm proven by a preponderance of the evidence.  
Amara,

563 U.S. at 444

.  That harm can be in either of two forms:  (1) loss of a right 

protected by ERISA or (2) detrimental reliance.

Id.

                      
          a.   Loss of a Right                                       
Defendants argue that Krebsbach “has not lost any rights under the Plan for which 
she cannot be made whole under Count I if, as she alleges, she is entitled to additional 
benefits under the Plan’s terms.”  (Doc. No. 33 at 14.)  Defendants point to Krebsbach’s 

failure to allege lost eligibility to benefits.  (Id. at 15.)             
Krebsbach asserts that “she lost rights when Travelers took advantage of the Plan’s 
lack of sufficient detail and clarity.”  (Doc. No. 39 at 14.)  Krebsbach asserts that those 
lost rights are:  (1) the lack of explanation of how benefits are determined, (2) failing to 
provide information in a prompt and complete manner, and (3) a lower benefit.  (Id. at 14, 

18.)                                                                      
ERISA § 102(a) requires a plan administrator to provide beneficiaries with 
summary plan descriptions and with summaries of material modifications, “written in a 
manner calculated to be understood by the average plan participant,” that are “sufficiently 
accurate and comprehensive to reasonably apprise such participants and beneficiaries of 

their rights and obligations under the plan.”

29 U.S.C. § 1022

(a).  This creates a right to 
information under ERISA.  Krebsbach asserts that Defendants breached their fiduciary 
duty to provide this information, which is a lost right that can serve as the basis for a 
surcharge remedy.  (Doc. No. 39 at 14.)  Krebsbach is correct.  Failure to provide 
sufficient SPDs is an injury to beneficiaries in and of itself.  Amara,

563 U.S. at 444

.  By 
claiming that the SPD misled her and that Defendants’ calculation of her benefits was 
inconsistent with the SPD, Krebsbach properly alleges a remediable harm.  Krebsbach 

points to an expert report from Mitchell I. Serota, an actuary who calculated Krebsbach’s 
benefits differently than Defendants using a common pension software.  (Am. Compl. ¶¶ 
91-92.)  A difference between experts’ interpretations of the SPD creates a plausible 
claim that the SPD was insufficient, because it was not clear enough for experts, let alone 
“the average plan participant.”

29 U.S.C. § 1022

(a).  The Court need not consider further 

lost rights, as Krebsbach has alleged “enough facts to state a claim to relief that is 
plausible on its face.”  Twombly,

550 U.S. at 570

.                        
Defendants also point again to potential improper duplicity, arguing that any issues 
of eligibility will be resolved under Count I.  (Doc. No. 33 at 17.)  Defendants claim that 
if their interpretation of the Plan, and therefore calculation of benefits, is correct, then 

there is no make-whole relief to award because no right was lost.  (Id.)  As discussed 
above, the Eighth Circuit allows duplicate claims so long as there is no duplicate relief.  
Surcharge is not a duplicative remedy because it is in addition to benefits owed damages.  
See Silva,

762 F.3d at 725

 (explaining that monetary remedies for breaches of fiduciary 
duty act as a deterrent against such breaches and reasoning that to obtain the full effect of 

such deterrence, the remedy must be on top of the benefits due).  Even if Defendants’ 
calculation of benefits is correct, there may still be a breach of fiduciary duty.  Cf. 
Lanpher,

50 F. Supp. 3d at 1148

. Krebsbach may claim equitable relief in addition to lost
benefits.
b. Detrimental Reliance
Defendants state that “Krebsbach has not alleged that she relied to her detriment
on any terms of the SPD.” (Doc. No. 33 at 19.) Defendants admit that Krebsbach alleges

she was misled by the SPD, but states that Krebsbach fails to allege any action taken
based on that allegedly misleading language. (Id.) Further, Defendants argue that
because the benefit received was “exactly what Travelers told her” it would be,
Krebsbach could not have reasonably relied on the SPD language. (Id. at 20.)
Krebsbach argues that Defendants’ failure to provide information impacted her

ability to appeal, which could have led Defendants to calculate her benefits differently.
(Doc. No. 39 at 38.) While not explicitly stated, Krebsbach implies that the detrimental
action taken because of that reliance was electing the Plan beginning in December 2021,
which Krebsbach alleges provides her with a lower benefit than the Plan beginning in
January 2022. Because Krebsbach does not identify a harm caused by detrimental

reliance that would not be duplicative of lost benefits remedy, this Court cannot support
detrimental reliance as a pathway to harm for purposes of awarding surcharge.
Therefore, Krebsbach is precluded from surcharge relief under the theory of detrimental
reliance under Count II.
4. Reformation

Plaintiff requests reformation of “the Plan in accordance with the SPD and
Krebsbach’s interpretation of the Plan.” (Am. Compl. at 31.) Reformation is “a
traditional power of an equity court” under which the court may reform a contract which
failed to express the agreement of the parties, owing either to mutual mistake or fraud of
one party and mistake of the other. Amara,

563 U.S. at 440-41

; Silva,

762 F.3d at 723

.
Defendants argue that reformation is not an available remedy to Krebsbach

because Krebsbach fails to allege that the Plan failed to express the agreement of the
parties. (Doc. No. 33 at 17-18.) Defendants point out that Krebsbach asks for this
remedy even if the Court finds that the Defendants’ interpretation of the Plan was correct.
(Id.) Defendants reason that if they are found to have correctly calculated Plan benefits,
there is no fraud or mistake on which to base a reformation claim. (Id.)

Krebsbach fails to even use the words “fraud” or “mistake” in her amended
complaint, nor does she claim that the Plan failed to express the agreement of the parties.
Instead, Krebsbach discusses how the interpretations of the same language vary. (Am.
Compl. ¶¶ 48-49, 53-61.) Dueling interpretations of the same language is inconsistent
with the necessary requirements to award reformation; by explaining her interpretation of

the language, Krebsbach implicitly acknowledges that the language expresses her
agreement with Defendants. Krebsbach fails to correct these shortcomings in her
opposition memorandum. Krebsbach alleges no fraud or mutual mistake, precluding a
reward of reformation.
CONCLUSION

The Court concludes that Amara, Silva, and Jones plainly foreclose Defendants’
motion for judgment on the pleadings with respect to Krebsbach’s claims for surcharge
under a theory of lost rights and attorneys’ fees. Krebsbach’s claims not only arise under
distinct legal theories—improper denial of benefits under the terms of the Plan and
breach of fiduciary duty—but also seek distinct relief. Specifically, while Count I of
Krebsbach’s complaint seeks benefits due under the Plan, Count II seeks equitable
remedies alleged to arise from Defendants’ failure to fulfill its fiduciary obligations to

Krebsbach. Under the governing precedent discussed above, the Court declines to
dismiss those claims as duplicative. Defendants’ motion for partial judgment on the
pleadings is denied in part.
The Court concludes that Defendants have, however, met the burden for a motion
for judgment on the pleadings with respect to Krebsbach’s claim for surcharge under a

theory of detrimental reliance. Krebsbach only identifies lost benefits as a harm under
detrimental reliance, the damages of which would be impermissibly duplicative of the
relief under Count I. Defendants have also met their burden with respect to Krebsbach’s
claims for reformation. Krebsbach fails to allege that the Plan failed to express the
agreement of the parties, or that there was fraud or mutual mistake, precluding an award

of reformation.

ORDER

Based upon the files, records, and proceedings herein, and for the reasons stated 
above, IT IS HEREBY ORDERED that:                                         
1.   Defendants’ motion for judgment on the pleadings (Doc. No. [30]) is 

GRANTED IN PART and DENIED IN PART as follows:                            
     a.   Defendants’ motion for judgment on the pleadings is GRANTED as 
to Plaintiff’s claims for surcharge under a theory of detrimental reliance and for 
reformation.  Plaintiff’s claims are DISMISSED WITH PREDJUDICE.      
     b.   Defendants’ motion for judgment on the pleadings is DENIED as to 
Plaintiff’s claims for surcharge under a theory of lost rights and for attorneys’ fees 
to remedy the alleged breaches of fiduciary duty under Count II.     


Dated:  November 14, 2024     s/Donovan W. Frank                          
                         DONOVAN W. FRANK                            
                         United States District Judge

Trial Court Opinion

            UNITED STATES DISTRICT COURT                             
                DISTRICT OF MINNESOTA                                


Judith M. Krebsbach,                     Civil No. 24-257 (DWF/TNL)       

          Plaintiff,                                                 

v.                                                                        
                                            MEMORANDUM               
The Travelers Pension Plan and The          OPINION AND ORDER             
Travelers Companies, Inc., as Plan                                        
Administrator and Sponsor of The                                          
Travelers Pension Plan,                                                   

          Defendants.                                                


                    INTRODUCTION                                     
This matter is before the Court on Defendants The Travelers Pension Plan and The 
Travelers Companies, Inc.’s (“Defendants”) motion for judgment on the pleadings.  (Doc. 
No. 30.)  Plaintiff Judith M. Krebsbach opposes the motion.  (Doc. No. 39.)  For the 
reasons set forth below, the Court denies in part and grants in part Defendants’ motion. 
                     BACKGROUND                                      
Krebsbach asserts claims against Defendants under the Employee Retirement 
Income Security Act of 1974,

29 U.S.C. § 1001

, et seq. (“ERISA”), arising out of The 
Travelers Pension Plan (“Plan”) under which Krebsbach is covered.  (Doc. No. 24 (“Am. 
Compl.”) ¶¶ 1, 5.)                                                        
Krebsbach began working for The Travelers Companies, Inc. (formerly known as 
The St. Paul Companies, Inc.) almost fifty years ago and is still employed there today.  
(Am. Compl. ¶ 6.)  Krebsbach is a participant in Travelers’ pension plan, which is a 
qualified defined benefit plan under § 401(a) of the Internal Revenue Code.  (Id. ¶ 7.)  
Both parties agree that Krebsbach is entitled to the larger lump-sum benefit available, but 
the parties disagree on how to calculate the benefits.  (Id. ¶ 58.)       

Krebsbach invokes two separate provisions of ERISA in her two-count complaint.  
Krebsbach asserts a “Claim for Benefits Due” (“Count I”) under

29 U.S.C. § 1132

(a)(1)(B), which provides that a civil action may be brought by a participant or 
beneficiary “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.”  (Id. ¶ 120.)  This claim is to determine which calculation is correct and 
therefore what benefit Krebsbach is owed.  (Id. ¶¶ 120-34.)  Krebsbach also asserts 
“Breaches of Fiduciary Duty” (“Count II”) under

29 U.S.C. § 1132

(a)(3) which entitles 
beneficiaries or participants to initiate a civil action “(A) to enjoin any act or practice 
which violates any provision of this subchapter or the terms of the plan, or (B) to obtain 

other appropriate equitable relief (i) to redress such violations or (ii) to enforce any 
provisions of this subchapter or the terms of the plan.”  (Id. ¶ 137.)  Krebsbach seeks 
relief under three such alleged breaches.  First, Krebsbach alleges that Defendants 
“breached [their] duty of loyalty owed to Krebsbach by choosing parts of the Plan most 
favorable to Travelers.”  (Id. ¶ 139.)  Krebsbach seeks “appropriate equitable relief, 

including to be made whole under the surcharge remedy or reformation of the Plan.”  
(Id.)  Second, Krebsbach alleges that Defendants breached their “fiduciary duty to 
provide [a Summary Plan Description (“SPD”)] that complied with

29 U.S.C. § 1022

552 F.3d 659, 665

 (8th Cir. 2009) (quoting Wishnatsky v. 
Rovner,

433 F.3d 608

, 610 (8th Cir. 2006)).  The Court evaluates a motion for judgment 

on the pleadings under the same standard as a motion brought under Federal Rule of Civil 
Procedure 12(b)(6).  See id.                                              
In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in 
the complaint to be true and construes all reasonable inferences from those facts in the 
light most favorable to the complainant.  Morton v. Becker,

793 F.2d 185, 187

 (8th Cir. 
1986).  In doing so, however, a court need not accept as true wholly conclusory 
allegations, Hanten v. Sch. Dist. of Riverview Gardens,

183 F.3d 799

, 805 (8th Cir. 1999), 

or legal conclusions drawn by the pleader from the facts alleged, Westcott v. City of 
Omaha,

901 F.2d 1486, 1488

 (8th Cir. 1990).                               
To survive a motion to dismiss, a complaint must contain “enough facts to state a 
claim to relief that is plausible on its face.”  Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570

 
(2007).  Although a complaint need not contain “detailed factual allegations,” it must 

contain facts with enough specificity “to raise a right to relief above the speculative 
level.”

Id. at 555

.  As the Supreme Court reiterated, “[t]hreadbare recitals of the elements 
of a cause of action, supported by mere conclusory statements,” will not pass muster 
under Twombly.  Ashcroft v. Iqbal,

556 U.S. 662, 678

 (2009) (citing Twombly,

550 U.S. at 555

).  In sum, this standard “calls for enough fact[s] to raise a reasonable expectation that 

discovery will reveal evidence of [the claim].”  Twombly,

550 U.S. at 556

. 
A.   Analysis                                                        
Defendants identify the following potential issues with Krebsbach’s claims under 
Count II:  (1) Krebsbach requests relief that is improperly duplicative of the relief sought 
under Count I; and (2) neither surcharge nor reformation are available remedies for legal 

theories asserted by Krebsbach.1  (Doc. No. 33 at 3, 12.)                 

1    Defendants also claim that there was no breach of duty related to information and 
explain the extensive communications between Krebsbach and Travelers.  (Doc. No. 33 
at 21-25.)  Similarly, Defendants argue that the duty of loyalty was not breached with 
respect to interpretation of the Plan.  (Id. at 16.)  Both arguments are on the merits of the 
     1.   Equitable Relief Under ERISA Generally                     
ERISA § 502(a)(3) allows a participant, beneficiary, or fiduciary “to obtain other 
appropriate equitable relief” to redress violations of ERISA “or the terms of the plan.”

29 U.S.C. § 1132

(a)(3).  In CIGNA Corp. v. Amara, the Supreme Court clarified the 
scope of “appropriate equitable relief” available pursuant to

29 U.S.C. § 1132

(a)(3).

563 U.S. 421, 438-42

 (2011).  The types of relief available under this provision of ERISA 
include those that “were typically available in equity.”

Id.

 at 439 (quoting Sereboff v. Mid 
Atl. Med. Servs., Inc.,

547 U.S. 356, 361

 (2006)).                        

     2.   Duplicative Relief                                         
          a.   Make-Whole Relief                                     
Defendants first argue that Krebsbach will be made whole by Count I alone, which 
would render Count II improperly duplicative.  (Doc. No. 33 at 3.)  Defendants 
emphasize that Krebsbach “seeks this additional relief even if the Court determines that 

the Plan correctly denied Krebsbach’s claim for benefits.”  (Id. at 3.)  “Simply put, 
because Count I will make her whole, Krebsbach has suffered no additional harm for 
which a remedy is available under Count II.”  (Id. at 4.)                 
Krebsbach asserts that “the Eighth Circuit and district courts have made clear that 
plaintiffs are permitted to have alternative claims, even where the relief sought is the 

benefits owed.”  (Doc. No. 39 at 15.)  Krebsbach points to cases Silva v. Metropolitan 
Life Insurance Co. and Jones v. Aetna Life Insurance Co., in which the Eighth Circuit 

claims, which should not be addressed in a motion for judgment on the pleadings.  The 
Court will therefore wait to address these points until appropriate.      
held that plaintiffs may plead duplicate claims so long as the claims are under different 
theories of liability.  (Id.; Silva,

762 F.3d 711, 726

 (8th Cir. 2014); Jones,

856 F.3d 541, 547

 (8th Cir. 2017).)  Krebsbach also points out that the District of Minnesota has 

precedent allowing a claim for breach of fiduciary duty even when the claim of benefits 
due failed.  (Doc. No. 39 at 16; Lanpher v. Metro. Life Ins. Co.,

50 F. Supp. 3d 1122

 
(D. Minn. 2014).)                                                         
The Eighth Circuit has explained that such plaintiffs can plead “alternative—as 
opposed to duplicative—theories of liability” as long as the plaintiff does not ultimately 

obtain duplicate recoveries.  Silva,

762 F.3d at 726

.  In evaluating whether a 
§ 1132(a)(1)(B) benefits claim renders a § 1132(a)(3) fiduciary-duty claim improperly 
duplicative, the Eighth Circuit affirmed that “Amara implicitly determined that seeking 
relief under (a)(1)(B) does not preclude seeking relief under (a)(3).”  Jones,

856 F.3d at 544-47

; see also Lanpher,

50 F. Supp. 3d at 1148

 (reading Silva to say that if the court 

concluded that plaintiff was not entitled to relief under his claim for benefits due, relief 
would still be available under the fiduciary duty claim).  Jones upheld Silva’s holding that 
“so long as two claims ‘assert different theories of liability,’ plan beneficiaries ‘may plead 
both.’”  Jones,

856 F.3d at 547

 (quoting Silva,

762 F.3d at 728

 & n.12).  Because claims 
for benefits due and claims for breaches of fiduciary duty arise from separate theories of 

legal liability, they are not duplicative.  See Christoff v. Unum Life Ins. Co. of Am., No. 
17-3512,

2018 WL 4110963

, at *3-4 (D. Minn. Aug. 29, 2018).               
Procedural posture is important when evaluating whether ERISA claims under 
§ 1132(a)(1)(B) and § 1132(a)(3) are duplicative: “At the motion to dismiss stage . . . it is 
difficult for a court to discern the intricacies of the plaintiff’s claims to determine if the 
claims are indeed duplicative, rather than alternative, and determine if one or both could 
provide adequate relief.”  Silva,

762 F.3d at 727

.  Thus, courts should permit ERISA 

plaintiffs to plead alternative claims advancing distinct legal theories under these 
provisions.  See

id. at 727-28

.  Krebsbach emphasizes this procedural point:  “Plaintiff 
has not had the opportunity to conduct discovery on the Fiduciary Breach claims nor to 
conduct discovery to assure the Record provided by Travelers is the complete Record as 
defined by ERISA regulations.”  (Doc. No. 39 at 12.)  Krebsbach identifies no specific 

discovery that is missing, but surmises that more relevant documents exist.  (Id. at 33-38.)  
While the Court fails to see what new information will come forward through discovery, 
the Court acknowledges that plaintiffs should be permitted to conduct discovery.  
Krebsbach’s claim for benefits due under § 1132(a)(1)(B) does not preclude 
recovery under § 1132(a)(3) for alleged breach of fiduciary duty.  However, any claim for 

benefits due under § 1132(a)(3) is precluded, as that would duplicate the remedy under 
§ 1132(a)(1)(B).  Krebsbach requests only equitable remedies under Count II, so her 
claims are not precluded.                                                 
          b.   SPD Claim                                             
Specific to Krebsbach’s claim that the SPD was insufficient, there is no issue of 

duplication.  Because SPDs are not part of a plan itself but simply documents explaining 
the plan, SPDs are not enforced through typical ERISA benefits due claims.  Amara,

563 U.S. at 438

.  As the Amara Court stated:                                  
The  relevant  substantive  provisions  of  ERISA  do  not  set  forth  any 
particular standard for determining harm.  They simply require the plan 
administrator to write and to distribute written notices that are “sufficiently 
accurate and comprehensive to reasonably apprise” plan participants and 
beneficiaries of “their rights and obligations under the plan.”  Nor can we 
find  a  definite  standard  in  the  ERISA  provision,  §  502(a)(3)  (which 
authorizes the court to enter “appropriate equitable relief” to redress ERISA 
“violations”).  Hence any requirement of harm must come from the law of 
equity.                                                              

Id. at 443 (citations omitted) (quoting

29 U.S.C. §§ 1022

remedies. In Christoff, the Court distinguished between remedies under the plan and
remedies for failure to fulfill fiduciary obligations. Christoff,

2018 WL 4110963

, at *4.  
Fees awarded for the litigation of benefits due fall into remedies under the Plan and are 
therefore duplicative.  Attorneys’ fees sought for Defendants’ alleged breach of fiduciary 
duty by failing to provide prompt, complete, and accurate information fall into the second 

category.  Krebsbach’s Count II request for attorneys’ fees is therefore not duplicative of 
relief under Count I.                                                     
     3.   Surcharge                                                  
Defendants next argue that Krebsbach is not entitled to the remedy of surcharge 
because Krebsbach fails to show actual harm from the alleged breaches of fiduciary duty.  

(Doc. No. 33 at 13.)                                                      
Relief available under ERISA includes the equitable remedy of “surcharge” or 
“make-whole relief” through which “[e]quity courts possessed the power to provide relief 
in the form of monetary ‘compensation’ for a loss resulting from a trustee’s breach of 
duty, or to prevent the trustee’s unjust enrichment.”  Amara,

563 U.S. at 441

-42 (quoting 

Restatement (Third) of Trusts § 95 cmt. c (Am. L. Inst. 2012)).  The Supreme Court 
explained that “[t]he surcharge remedy extended to a breach of trust committed by a 
fiduciary encompassing any violation of a duty imposed upon that fiduciary.”  Id. at 442.  
Post-Amara, the Eighth Circuit has clarified that ERISA plaintiffs may seek “make-
whole, monetary relief under § 1132(a)(3).”  Silva,

762 F.3d at 724

.  To award surcharge, 
the plaintiff must have suffered actual harm proven by a preponderance of the evidence.  
Amara,

563 U.S. at 444

.  That harm can be in either of two forms:  (1) loss of a right 

protected by ERISA or (2) detrimental reliance.

Id.

                      
          a.   Loss of a Right                                       
Defendants argue that Krebsbach “has not lost any rights under the Plan for which 
she cannot be made whole under Count I if, as she alleges, she is entitled to additional 
benefits under the Plan’s terms.”  (Doc. No. 33 at 14.)  Defendants point to Krebsbach’s 

failure to allege lost eligibility to benefits.  (Id. at 15.)             
Krebsbach asserts that “she lost rights when Travelers took advantage of the Plan’s 
lack of sufficient detail and clarity.”  (Doc. No. 39 at 14.)  Krebsbach asserts that those 
lost rights are:  (1) the lack of explanation of how benefits are determined, (2) failing to 
provide information in a prompt and complete manner, and (3) a lower benefit.  (Id. at 14, 

18.)                                                                      
ERISA § 102(a) requires a plan administrator to provide beneficiaries with 
summary plan descriptions and with summaries of material modifications, “written in a 
manner calculated to be understood by the average plan participant,” that are “sufficiently 
accurate and comprehensive to reasonably apprise such participants and beneficiaries of 

their rights and obligations under the plan.”

29 U.S.C. § 1022

(a).  This creates a right to 
information under ERISA.  Krebsbach asserts that Defendants breached their fiduciary 
duty to provide this information, which is a lost right that can serve as the basis for a 
surcharge remedy.  (Doc. No. 39 at 14.)  Krebsbach is correct.  Failure to provide 
sufficient SPDs is an injury to beneficiaries in and of itself.  Amara,

563 U.S. at 444

.  By 
claiming that the SPD misled her and that Defendants’ calculation of her benefits was 
inconsistent with the SPD, Krebsbach properly alleges a remediable harm.  Krebsbach 

points to an expert report from Mitchell I. Serota, an actuary who calculated Krebsbach’s 
benefits differently than Defendants using a common pension software.  (Am. Compl. ¶¶ 
91-92.)  A difference between experts’ interpretations of the SPD creates a plausible 
claim that the SPD was insufficient, because it was not clear enough for experts, let alone 
“the average plan participant.”

29 U.S.C. § 1022

(a).  The Court need not consider further 

lost rights, as Krebsbach has alleged “enough facts to state a claim to relief that is 
plausible on its face.”  Twombly,

550 U.S. at 570

.                        
Defendants also point again to potential improper duplicity, arguing that any issues 
of eligibility will be resolved under Count I.  (Doc. No. 33 at 17.)  Defendants claim that 
if their interpretation of the Plan, and therefore calculation of benefits, is correct, then 

there is no make-whole relief to award because no right was lost.  (Id.)  As discussed 
above, the Eighth Circuit allows duplicate claims so long as there is no duplicate relief.  
Surcharge is not a duplicative remedy because it is in addition to benefits owed damages.  
See Silva,

762 F.3d at 725

 (explaining that monetary remedies for breaches of fiduciary 
duty act as a deterrent against such breaches and reasoning that to obtain the full effect of 

such deterrence, the remedy must be on top of the benefits due).  Even if Defendants’ 
calculation of benefits is correct, there may still be a breach of fiduciary duty.  Cf. 
Lanpher,

50 F. Supp. 3d at 1148

563 U.S. at 440-41

; Silva,

762 F.3d at 723

.
Defendants argue that reformation is not an available remedy to Krebsbach

of reformation.

ORDER

Based upon the files, records, and proceedings herein, and for the reasons stated 
above, IT IS HEREBY ORDERED that:                                         
1.   Defendants’ motion for judgment on the pleadings (Doc. No. [30]) is 

GRANTED IN PART and DENIED IN PART as follows:                            
     a.   Defendants’ motion for judgment on the pleadings is GRANTED as 
to Plaintiff’s claims for surcharge under a theory of detrimental reliance and for 
reformation.  Plaintiff’s claims are DISMISSED WITH PREDJUDICE.      
     b.   Defendants’ motion for judgment on the pleadings is DENIED as to 
Plaintiff’s claims for surcharge under a theory of lost rights and for attorneys’ fees 
to remedy the alleged breaches of fiduciary duty under Count II.     


Dated:  November 14, 2024     s/Donovan W. Frank                          
                         DONOVAN W. FRANK                            
                         United States District Judge

Reference

Status: Unknown