statute of limitations - terminated plan

[Gary]

If a plan terminates and purchases annuities with an insurance company, what is a participant's recourse if he believes that his benefits are incorrectly calculated? Would the insurance co. be on the hook? Or is it too late by then? Any thoughts out there? Any citing? Thank you.

Gary.

[KJohnson]

I don't know about an action against the insurer. You could probably still sue the plan. ERISA contains no statute of limitations for 502(a)(1)(B) litigtion so courts generally look to state statute of limitations for written contracts. This will vary by state.

Of course if the Plan no longer has assets or exists, such an action might be futile.

You could consider an action against the applicable fiduciaries on a fiduicary breach theory. Technically, any failure to abide by the Plan document is a fiduciary breach. Courts, however, are very reluctant to turn a traditional benefits action into a fiduciary breach action except in unusual circumstances--however this might qualify. Statute of limitations for fiduciary breach is generally either 3 or 6 years depending on the circumstances.

Have you tried simply contacting the Plan sponsor? Also, if this is a DB Plan, there is a PBGC guarantee. They might be able to help you out if the plan sponsor is not cooperative.