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Kushner v. Nationwide Mutual Insurance Co.

United States District Court, S.D. Ohio, Eastern Division

January 13, 2020

KURT KUSHNER, Plaintiff,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, et al., Defendants.

          Vascura Magistrate Judge.

          OPINION & ORDER

          ALGENON L. MARBLEY CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This matter is before the Court on Plaintiff and Defendants' Cross-Motions for Summary Judgment. (Docs. 18 & 19.) The Motions are fully briefed, and the Court will resolve each of them without oral argument. For the reasons set forth below, the Court GRANTS Defendants' Motion [#19] and DENIES Plaintiff's Motion [#18].

         II. BACKGROUND

         A. Related Lawsuit

         Plaintiff has a related lawsuit pending before this Court that provides relevant background to the claims at issue here. (See Kushner v. Nationwide Mutual Insurance Co., et al., 17-cv-00715.) The Court draws largely from its September 26, 2019 Summary Judgment Opinion and Order to set forth the facts in that case. (See 17-cv-00715, Doc. 59.)

         From July 1, 1998 through February 17, 2003, Plaintiff Kurt Kushner worked as an independent contractor who sold products for Defendant Nationwide Mutual Insurance Company (“Nationwide”), including property and casualty insurance, life insurance, annuities, and mutual funds. On February 17, 2003, Nationwide hired Plaintiff as an employee, giving him the title of Territory Sales Director. In this new role, Plaintiff participated in the Nationwide Retirement Plan (“NRP”). Plaintiff did not participate in the NRP prior to this time.

         In 2002, Nationwide went through a change, whereby recordkeeping for the NRP was moved from an internal system to Aon Hewitt, a third party. To that end, Nationwide sent Aon Hewitt bi-weekly data feeds from its human resources system, which contained information such as employees' date of hire, date of birth, and salary. Aon Hewitt, in turn, used this information to determine eligibility and calculate benefits under the NRP, as well as to prepare benefits estimates. When Nationwide sent Aon Hewitt Plaintiff's HR information, Plaintiff's hire date was erroneously recorded as July 1, 1998, the date he began working as an independent contractor, as opposed to February 17, 2003, the date he began working as a Nationwide employee. It is unclear who or what at Nationwide was responsible for this transmission error, but consequently, Aon Hewitt miscalculated Plaintiff's benefits amount under the NRP, showing he was entitled to a much higher sum than was the reality.

         In early 2004, Nationwide sent Plaintiff a Total Rewards Statement. The Statement noted Plaintiff's correct hire date, February 17, 2003, and provided that Plaintiff had an estimated accrued monthly benefit of $620, which would be paid out upon his retirement. In addition, the Statement specified that Plaintiff was 100% vested in his accrued benefit. After receiving this Statement, Plaintiff called Nationwide's Associate Service Center to confirm that he was 100% vested in the NRP. The representative he spoke with responded affirmatively, stating that the NRP recognized Plaintiff's years of service as an independent contractor. This, however, was incorrect.

         For the next ten years, Plaintiff continued to receive annual Rewards Statements. Those Statements provided the following estimates:

Statement Date

Estimated Accrued Monthly Benefit Payable Upon Retirement

2004/2005

$1, 017

2005/2006

$1, 169

2006/2007

$1, 535

2007/2008

$1, 802

2008/2009

$2, 264

2009/2010

$2, 684

2010/2011

$3, 203

2011/2012

$3, 520

2012/2013

$3, 852

2013/2014

$4, 129

         Based on these representations, Plaintiff opted to support his children's college funding without having them take on any debt and he also passed up a job opportunity that would have provided him with more money.

         In 2014, Nationwide transferred recordkeeping for the NRP from Aon Hewitt to Fidelity. It was during this transition that Nationwide discovered that Aon Hewitt had been using Plaintiff's incorrect hire date for its benefits calculations. Once corrected, it was determined that, as of November 2014, Plaintiff was only entitled to receive $1, 327 per month upon retirement, rather than the $4, 129 per month reflected in his most recent Rewards Statement. Plaintiff subsequently filed a claim with Nationwide's Administrative Committee, also named as a Defendant in ...


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