RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0163P (6th Cir.) File Name: 00a0163p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  RICHARD L. RAVENCRAFT,  Plaintiff-Appellant,   No. 98-6137 v.  > UNUM LIFE INSURANCE   Defendant-Appellee.  COMPANY OF AMERICA,

 1 Appeal from the United States District Court for the Eastern District of Kentucky at Ashland. No. 97-00076—Henry R. Wilhoit, Jr., District Judge. Argued: March 8, 2000 Decided and Filed: May 12, 2000 Before: WELLFORD, SILER, and GILMAN, Circuit Judges. _________________ COUNSEL ARGUED: Richard W. Martin, MARTIN, JUSTICE, VINCENT & LAVENDER, Ashland, Kentucky, for Appellant. Ann M. Turner, WYATT, TARRANT & COMBS, Louisville, Kentucky, for Appellee. ON BRIEF: Richard W. Martin, MARTIN, JUSTICE, VINCENT &

1 2 Ravencraft v. UNUM Life Insurance Co. No. 98-6137

LAVENDER, Ashland, Kentucky, for Appellant. Pamela J. Ledford, WYATT, TARRANT & COMBS, Louisville, Kentucky, for Appellee. _________________ OPINION _________________ HARRY W. WELLFORD, Circuit Judge. Richard L. Ravencraft filed suit in Kentucky state court for disability benefits under an employer-sponsored plan through defendant, UNUM Life Insurance Company of America (“UNUM”). Asserting that the plan was governed by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq., UNUM removed the case to federal court based upon federal question jurisdiction. The district court granted summary judgment in favor of UNUM because Ravencraft failed to exhaust his administrative remedies. Ravencraft now appeals from the district court’s grant of summary judgment and its dismissal with prejudice of his asserted cause of action. Ravencraft, a pharmacist, filed his claim for long-term disability benefits in September of 1996 because of a knee replacement and1 a serious potential for the same operation on the other knee. His employer, insured through UNUM, denied his claim in February of 1997, over ninety days after the date that he filed his claim. The denial of benefits included the following material language: We have completed our review of your . . . disability claim and have made a final determination regarding . . . benefit disability. Our review has concluded that we are unable to approve benefits. ...

1 Ravencraft concedes in his brief that he did receive short-term benefits after his operation. 6 Ravencraft v. UNUM Life Insurance Co. No. 98-6137 No. 98-6137 Ravencraft v. UNUM Life Insurance Co. 3

prejudice. Accordingly, we VACATE and REMAND this If you have new, additional information to support your case to the district court to dismiss the asserted cause of request for disability benefits, for instance proof of action without prejudice. disability during the interim between June 4, 1996 and November 19, 1996, please send it to my attention at the above address. If you do not agree with our decision, you may have it reviewed. Should you desire a review, you must send a written request, within 60 days of your receipt of this notice, to: UNUM LTD Quality Review Section 2211 Congress Street Portland, ME 04122-0360 . . . You may also request copies of pertinent documents contained in your file. If UNUM does not receive the written request within 60 days of your receipt of this notice, our claims decision will be final. Rather than submit any new evidence to support his claim, or seek documentation for the result, or appeal within the time specified, Ravencraft filed suit.2 I. FUTILITY We have held in Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 986 (6th Cir. 1991), that “[t]he administrative scheme of ERISA requires a participant to exhaust his or her administrative remedies prior to commencing suit.” This is the law in most circuits despite the fact that ERISA does not explicitly command exhaustion. We reiterated that exhaustion requirement in Baxter v. C.A. Muer Corp., 941 F.2d 451, 453-54 (6th Cir. 1991), citing with approval Makar

2 Ravencraft returned to work with his employer, under protest, in June of 1997 following a period in which he did not receive any disability benefits. 4 Ravencraft v. UNUM Life Insurance Co. No. 98-6137 No. 98-6137 Ravencraft v. UNUM Life Insurance Co. 5

v. Health Care Corp. of Mid-Atlantic, 872 F.2d 80, 83 (4th reviewing the fiduciaries’ actions.” Makar, 872 F.2d at 83 Cir. 1989). (emphasis added.). While recognizing this clear Sixth Circuit authority, In this case, Ravencraft has failed to show that the review Ravencraft maintains that under the circumstances of this case procedures are insufficient or unfair, or that an available he was not required first to exhaust his administrative remedy is inadequate. Ravencraft has thus, as a matter of law, remedies before filing suit because his pursuit of such failed to meet his burden to show futility so as to excuse the remedies would have been futile. See Springer v. Wal-Mart usual exhaustion requirement. Weiner v. Klais and Co., 108 Assocs.’ Group Health Plan, 908 F.2d 897, 899 (11th Cir. F.3d 86, 90 (6th Cir. 1997); Makar, 872 F.2d at 83. 1990). Because we review a grant of summary judgment de Accordingly, we AFFIRM the grant of summary judgment in novo, Costantino v. TRW, Inc., 13 F.3d 969, 974 (6th Cir. favor of UNUM. 1994), we look to the authorities, above cited, as well as the pertinent, virtually uncontested, factual circumstances to II. DISMISSAL WITH OR WITHOUT PREJUDICE resolve this controversy. In a Rule 59(e) motion, Ravencraft requested that the court We reject Ravencraft’s assertion that the administrative amend its order of summary judgment to direct that the action process would have been futile based simply on the fact that be dismissed without prejudice. He urged the district court to the employer filed its denial of benefits beyond the ninety-day adopt the conclusion in Makar, wherein the appellate court requirement set out in ERISA.3 UNUM’s actions do not dismissed the case without prejudice and remanded to the bespeak that it ignored the claim, nor did UNUM fail to give district court “to allow [the claimants] the opportunity to Ravencraft’s claim due consideration. That the “plan pursue their [administrative] remedies.” Makar, 872 F.2d at administrator . . . and trustees who review appeals share 83. See Baxter, 941 F.2d at 454 n.1. Thus, under those common interests or affiliations” is also insufficient to show circumstances, this court held that the dismissal with futility.4 See Amato v. Bernard, 618 F.2d 559, 569 (9th Cir. prejudice was proper. Id. 1980). The policy required “a full and fair review of the claim,” if a claimant sought a review or submitted additional Ravencraft claims that this case is factually similar to documents to that end. As stated in Makar, review or Makar and not Baxter because the district court dismissed his exhaustion “enables plan fiduciaries to efficiently manage case solely based on his failure to exhaust his administrative their funds; correct their errors; interpret plan provisions; and remedies. Consequently, he argues, the district court should assemble a factual record which will assist a court in have dismissed the case without prejudice to pursue those remedies. Baxter is distinguishable from the circumstances in this 3 case because the plaintiff in Baxter lost on both the merits and Plaintiff concedes that the 90-day period may be extended up to an on the basis of procedural deficiency. Baxter cited Makar additional 90 days if special circumstances so warrant. with approval, and the latter involved only procedural failure 4 on the part of the plaintiff. Makar is therefore akin to the We are not persuaded by Ravencraft’s argument that since his facts in this case. employer directed him to return to work shortly before the time for administrative appeal expired that this circumstance indicates futility. The Under these circumstances, we believe the district court fact is that plaintiff failed to pursue his available administrative review procedure. should have exercised its discretion to dismiss without