Mark M. Messing v. Provident Life and Accident Insurance Company

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0211p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARK M. MESSING,
Plaintiff-Appellant/Cross-Appellee,
v.
PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY,
Defendant-Appellee/Cross-Appellant.
┐
│
│
│
│
│
│
│
┘
Nos. 21-2780/2790
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:20-cv-00351—Hala Y. Jarbou, District Judge.
Argued: June 9, 2022
Decided and Filed: September 9, 2022
Before: CLAY, ROGERS, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Gerald B. Zelenock, Jr., JAY ZELENOCK LAW FIRM PLC, Traverse City,
Michigan, for Appellant/Cross-Appellee. D. Andrew Portinga, MILLER JOHNSON, Grand
Rapids, Michigan, for Appellee/Cross-Appellant. ON BRIEF: Gerald B. Zelenock, Jr., JAY
ZELENOCK LAW FIRM PLC, Traverse City, Michigan, George R. Thompson, THOMPSON
O’NEIL PC, Traverse City, Michigan, for Appellant/Cross-Appellee. D. Andrew Portinga,
Jacob Carlton, MILLER JOHNSON, Grand Rapids, Michigan, for Appellee/Cross-Appellant.
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff Mark Messing received long-term disability benefits
from Defendant Provident Life & Accident Insurance Company (“Provident”) from 2000 until
>

-- 1 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 2
2018, at which time, Provident terminated Messing’s benefits. Messing commenced this action
seeking the reinstatement of his benefits. Provident counterclaimed that it was entitled to
reimbursement for the benefits it had paid Messing over those eighteen years. The district court
denied Messing’s motion for judgment on the administrative record, which sought to reinstate his
benefits, finding that Messing had failed to show by a preponderance of the evidence that he
remained unable to work; but the court granted Messing’s motion for summary judgment on
Provident’s counterclaim. For the reasons set forth below, we AFFIRM in part and REVERSE
in part.
I. BACKGROUND
A. Factual Background
Mark Messing was an attorney in Traverse City, Michigan. In 1985, he applied for a
long-term disability (“LTD”) insurance policy (the “Plan”) through Provident. During the
application process, Messing indicated that his occupation was “attorney” and that the “exact
duties” of his occupation were simply to “practice law.” (LTD Policy Application, R. 1-1,
PageID #28.) Provident approved Messing’s application, and the Plan went into effect on
August 1, 1985.
The Plan provided that if Messing suffers a “Total Disability due to . . . Sickness” after
1988 but before he reached the age of 65, he would receive monthly payments of $3,080 “for
life.” (Id., PageID ##15, 17, 34.) According to the Plan’s definitions, “Total Disability” meant
that the insured is “not able to perform the substantial and material duties of . . . the occupation
(or occupations, if more than one) in which [he is] regularly engaged at the time [he] become[s]
disabled.” (Id., PageID #16.) Additionally, the Plan defined “Sickness” to include a “sickness or
disease which is first manifested while [the] policy is in force.” (Id.) The Plan also provided
that “Benefits are payable while a period of Total Disability continues,” and that the beneficiary
“must present satisfactory proof of [his] loss.” (Id., PageID #17.) Messing consistently paid the
Plan premiums.
Beginning in 1994, Messing began struggling with depression. At first, the depression
was mild, and his doctor prescribed him anti-depressants. But by 1997, his condition

-- 2 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 3
deteriorated. Messing was admitted to the hospital for his depression on January 2, 1997, and
not released from an outpatient treatment center until January 27, 1997. He returned to work on
January 31, but never in a full-time capacity.
In March 1998, Messing filed a claim with Provident claiming he was totally incapable of
working as an attorney. On his claim form, he indicated his job title as “attorney admitted to
Michigan and federal bar, personal injury litigation.” (Occupational Information, R. 38-9,
PageID #1691.) He attached to his application an “Attorney Questionnaire.” In the
questionnaire, Messing indicated that at the time of submitting his claim, his job duties included:
(1) traveling by car and air; (2) preparing for and appearing in court; (3) filing documents with a
court or agency; (4) taking depositions; (5) interviewing clients in person; (6) legal research;
(7) writing briefs; (8) completing and answering discovery requests; (9) writing letters or
memos; (10) using the telephone; (11) investigating cases outside of my office; (12) closing files;
(13) hiring secretarial help; (14) managing secretarial help; (15) reading advance sheets,
professional journals, and articles; (16) discussing cases with other lawyers; and (17) attending
professional continuing education programs or seminars.
Provident initially approved his claim; but after a few months of payouts, it changed
course and initiated a dispute. Messing commenced a lawsuit in 1999, which was settled in 2000
with Provident agreeing to resume payments.
Every year Messing was asked in some form what duties of his former job he was able to
perform. Every year he indicated in varying terminology that he was unable to perform
substantially all of the duties he performed as a personal injury trial attorney and that he had no
intention of ever returning to practice. In 2010, Provident began using an “Individual Disability
Status Update” form. (See, e.g., R. 38-2, PageID ##675–77.) The Individual Disability Status
Updates continued to ask what duties of lawyering Messing was unable to perform, to which
Messing continued to indicate “substantially all.” (See, e.g., id.) Notably, the Individual
Disability Status Updates contained a “Fraud Warning,” which cautioned Messing against
submitting “false, incomplete, or misleading information” regarding his claim. (See, e.g., id.,
PageID #677.) After the fraud warning, Messing signed a notice stating, “I also acknowledge
that should my claim be overpaid for any reason it [is] my obligation to repay any such

-- 3 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 4
overpayment.” (Id.) Messing signed identical acknowledgments from 2010 through 2017.
(R. 38-2, PageID ##677, 758, 774, 794, 815, 835, 851, 874.)
In 2018, Provident transferred Messing’s claim to Jennifer Crowley, a Senior Disability
Specialist, for review. During her review, Crowley contacted Messing. She specifically asked
him whether he had represented any individuals, and Messing stated he had not.
Crowley sought further proof, beyond Messing’s own certifications, that he was actually
unable to work as an attorney. Provident requested updated records from Messing’s treating
psychiatrist, Dr. Laura Franseen. Dr. Franseen submitted a report in July 2018 diagnosing
Messing with “Major Depressive Disorder, recurrent, minimal to mild.” (Franseen Report, R.
38-4, PageID #1177.) She noted that Messing had stopped using medications to treat his
depression in 2012 “and ha[d] been stable for the most part since then.” (Id.) She concluded her
report noting that although Messing “must avoid highly stressful situations as best he can, . . .
[h]e is better able to tolerate ‘normal stress’ nowadays.” (Id., PageID #1178.) Dr. Franseen’s
report did not render an opinion as to whether Messing could return to work.
Provident had Dr. Alex Ursprung review Dr. Franseen’s report. Dr. Ursprung believed
based on Messing’s medical record that Messing could return to work. He sent a follow-up letter
to Dr. Franseen asking “[d]o you agree with my opinion that Mr. Messing is not psychiatrically
precluded from returning to work?” (R. 38-11, PageID #2022.) When Dr. Franseen did not
reply to the letter, Dr. Ursprung called. As in her report, she expressly refused to give her
opinion as to whether Messing could return to work as an attorney.
To get an answer to this question, Provident then hired Dr. Craig Lemmen for the specific
purpose of evaluating whether Messing could work. Dr. Lemmen conducted an interview with
Messing for over two hours. After their meeting, Dr. Lemmen prepared a lengthy report. He
noted that Messing “indicated that he was not depressed at this point in time and that he is trying
not to have any anxiety.” (Lemmen Report, R. 38-15, PageID #2492.) When Dr. Lemmen asked
Messing how he was impaired at that time, Messing replied, “I’m not.” (Id.) Dr. Lemmen agreed
with Dr. Franseen’s diagnosis of Major Depressive Disorder, but found that Messing “is not
experiencing significant symptoms.” (Id., PageID #2493.) Therefore, in Dr. Lemmen’s

-- 4 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 5
professional opinion, Messing’s condition was “in remission.” (Id.) At bottom, Dr. Lemmen
concluded “[t]here is no objective evidence that [Messing] would not be able to practice as an
attorney, should he desire to do so.” (Id., PageID #2494.)
Provident reviewed Dr. Franseen’s report and Dr. Lemmen’s report and determined that
Messing was no longer unable to work as a personal injury trial attorney. Messing appealed the
termination of his benefits to Provident’s appeals division. In support of his appeal, Messing
attached three affidavits from attorneys who all stated that, in their opinions, Messing was unable
to return to work as an attorney. Messing also attached a report from a third psychiatrist, Dr.
Paul Callaghan. Dr. Callaghan agreed with Dr. Franseen and Dr. Lemmen that Messing suffered
from “Major Depression, recurrent.” (Callaghan Report, R. 38-17, PageID #2852.) He noted
that Messing’s diagnosis was “in remission” because of his “diligence and mindfulness to avoid
significant stressors.” (Id.) However, Dr. Callaghan disagreed with Dr. Lemmen’s findings
“that there is ‘no objective evidence’ that Mr. Messing would not be able to return to practice as
an attorney, as Mr. Messing has a clear history of exacerbation of major depression when
exposed to stressors, particularly work stressors.” (Id.) Finally, Messing attached to his appeal a
1
vocational rehabilitation evaluation.
Provident reviewed the evidence presented on appeal. It found Dr. Lemmen’s ten-page
report “thoughtful, comprehensive and consistent with accepted professional standards,” and Dr.
Callaghan’s one-and-a-half-page report “quite terse.” (R. 38-17, PageID ##2879–80.)
Ultimately, Provident’s appeals division affirmed the termination of Messing’s benefits.
B. Procedural Background
In April 2020, Messing commenced this action. He alleged that by ceasing his benefits
payments, Provident breached the Plan in violation of Employee Retirement Income Security
Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. While litigating Messing’s claim, Provident
found evidence that Messing had occasionally been working as an attorney while collecting his
1The vocational rehabilitation evaluation suggested that Messing was unable to return to work as a personal
injury trial attorney. However, “[v]ocational expert testimony . . . has no relevance to long-term disability claims
like the one here where the question is whether [Messing] is able to return to his former position based on the
medical evidence.” Gilewski v. Provident Life & Accident Ins. Co., 683 F. App’x 399, 408 (6th Cir. 2017).

-- 5 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 6
disability payments. Between 1999 and 2013, Provident identified thirteen instances of Messing
performing legal services for others, and evidence that he represented himself in divorce
proceedings in 2001. In these representations, Messing performed a broad array of legal services
including, but not limited to: (1) filing briefs, (2) interviewing clients, (3) negotiating
settlements, (4) appearing for a bench trial, (5) negotiating plea agreements, (6) examining
witnesses, and (7) performing legal research. Messing never disclosed any of this work to
Provident. Although Messing’s work spanned over a decade, there is no indication he ever
resumed working as an attorney in a full-time capacity. Upon learning this information,
Provident filed a counterclaim seeking to recover overpaid benefits pursuant to § 502(a)(3) of
ERISA, 29 U.S.C. § 1132(a)(3).
Messing moved for judgment on the administrative record, and for summary judgment on
Provident’s counterclaim. The district court affirmed the termination of Messing’s benefits and
granted the motion for summary judgment. After thoroughly considering the administrative
record, the court found Dr. Franseen’s report, Dr. Lemmen’s report, and Dr. Callaghan’s report
to be the most pertinent evidence. It held that “Dr. Callaghan’s perfunctory report does not
outweigh Dr. Lemmen’s findings;” and therefore, “Messing ha[d] failed to show by a
preponderance of the evidence that he [was] disabled within the meaning of the policy at issue.”
(Op., R. 56, PageID #3395–96.) Regarding the motion for summary judgment, the court held
Provident had failed to proffer evidence that Messing’s fraudulent statements that he was totally
unable to work induced it into continuing payments. Although Provident had introduced
evidence that it would have reviewed Messing’s claim if it had known he were performing the
duties of an attorney, the district court held “reviewing Messing’s file is not the same as
terminating benefits.” (Id., PageID #3398.) Therefore, Provident had not proven it was induced
into making payments it otherwise would not have made. Further, the district court held
Messing’s attestations that he would repay any overpayments could not support a claim under
ERISA because they were promises made separate and apart from the Plan.
Messing appealed the termination of his benefits and Provident cross-appealed the grant
of summary judgment on its counterclaims.

-- 6 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 7
II. ANALYSIS
A. Termination of Messing’s Benefits
i. Standard of Review
“Courts review a plan administrator’s termination of benefits de novo unless the plan
grants the administrator ‘discretionary authority to determine eligibility for benefits or construe
the terms of the plan.’” Davis v. Hartford Life & Accident Ins. Co., 980 F.3d 541, 545 (6th Cir.
2020) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). A plan grants
“discretionary authority” when the “plan expressly grants to the administrator such discretion,
and there is no evidence of a conflict of interest.” Shelby Cnty. Health Care Corp. v. Majestic
Star Casino, 581 F.3d 355, 365 (6th Cir. 2009). The Plan at issue in this appeal does not
expressly grant Provident discretionary authority to determine Messing’s eligibility for benefits;
and therefore, the parties properly agree that de novo review is appropriate. De novo review
applies to both the district court’s and administrator’s decisions. Wilkins v. Baptist Healthcare
Sys., Inc., 150 F.3d 609, 613 (6th Cir. 1998). Importantly, our review of Provident’s decision to
terminate Messing’s benefits is limited to “only the evidence available to the administrator at the
time the final decision was made.” McClain v. Eaton Corp. Disability Plan, 740 F.3d 1059,
1064 (6th Cir. 2014).
ii. Application
“To succeed in his claim for disability benefits under ERISA, [Messing] must prove by a
preponderance of the evidence” that he remains disabled according to the Plan’s terms. Javery v.
Lucent Techs., Inc. Long Term Disability Plan for Mgmt. or LBA Emps., 741 F.3d 686, 700 (6th
Cir. 2014). The Plan provides that “Benefits are payable for Total Disability due to Injuries or
Sickness.” (LTD Policy, R. 1-1, PageID #17.) The Plan continues that “Total Disability” occurs
when the participant “[is] not able to perform the substantial and material duties of [his]
2
occupation; and [he is] under the care and attendance of a Physician.” (Id., PageID #16.) The
Plan further states that “occupation” means “the occupation . . . in which you are regularly
2Provident later dropped the requirement that covered individuals be under the care of a physician to
receive total disability benefits.

-- 7 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 8
engaged at the time you became disabled.” (Id.) Thus all together, Messing must prove by a
preponderance of the evidence that he remains unable to perform the substantial and material
duties that he previously performed as an attorney in 1998.
Fortunately, we need not speculate as to the duties Messing previously performed. When
Messing first filed his claim for benefits in 1998, he specifically identified his duties at that time.
He indicated that his duties included: (1) “telephone contact with clients, opposing attorneys,
courts and witnesses”; (2) “travel”; (3) “writing memos, correspondence”; (4) “Research—legal
and factual”; (5) “Court Appearances and preparation”; (6) “interviewing clients”;
3
(7) “depositions”; and (8) “writing briefs.” (Occupational Info. Form, R. 38-14, PageID
#2386.) With these duties in mind, we consider whether Messing has shown by a preponderance
of the evidence that he remains unable to work.
To make his case, Messing predominantly relies on two categories of evidence: expert
reports and attorney affidavits. Turning first to the three psychiatrists’ reports, Messing finds
some help. Dr. Franseen’s report, which was prepared first, is neutral. She diagnosed Messing
as suffering from “Major Depressive Disorder, recurrent, minimal to mild,” which
“[i]nfrequently to occasionally [manifests] with symptoms of sadness, and/or anxiety, feeling
unmotivated, and/or lacking in energy.” (Franseen Report, R. 38-17, PageID #2849.) She noted
that Messing had “discontinued his psychotropic medications in early 2012 and ha[d] been stable
for the most part since then, because of his diligent psychotherapeutic work.” (Id.) Dr. Franseen
4
assigned Messing a Global Assessment of Functioning (“GAF”) score between a 60 and 65.
She finished her report noting that although Messing “must avoid highly stressful situations as
3On a different form accompanying his application, Messing indicated his duties were (1) traveling by car
and air; (2) preparing for and appearing in court; (3) filing documents with a court or agency; (4) taking depositions;
(5) interviewing clients in person; (6) legal research; (7) writing briefs; (8) completing and answering discovery
requests; (9) writing letters or memos; (10) using the telephone; (11) investigating cases outside of my office; (12)
closing files; (13) hiring secretarial help; (14) managing secretarial help; (15) reading advance sheets, professional
journals, and articles; (16) discussing cases with other lawyers; and (17) attending professional continuing education
programs or seminars.
4A GAF score measures how well an individual is functioning in his daily life. Scores range from 0 to 100.
See Gilewski v. Provident Life & Accident Ins. Co., 683 F. App’x 399, 402 n.1 (6th Cir. 2017). A score of 61–70
indicates “[s]ome mild symptoms (e.g. depressed mood and mild insomnia) OR some difficulty in social,
occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally
functioning pretty well.” See https://www.albany.edu/counseling_center/docs/GAF.pdf

-- 8 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 9
best he can, . . . [h]e is better able to tolerate ‘normal stress’ nowadays.” (Id., PageID #2850.)
Most importantly, Dr. Franseen expressly refused to opine on whether Messing could perform
his former duties. Her explicit refusal to render an opinion on Messing’s ability to work came
shortly after her 2017 assessment that concluded that Messing should do his best “to avoid high
stress situations and occupations.” (2017 Franseen Report, R. 38-2, PageID #630 (emphasis
added).) Overall, Dr. Franseen’s report cuts both ways; neither Messing nor Provident can find
much help.
Next, Dr. Lemmen’s report clearly weighs against Messing. Dr. Lemmen conducted an
interview with Messing for over two hours. After their meeting, Dr. Lemmen prepared a ten-
page report. He noted that Messing “indicated that he was not depressed at this point in time and
that he is trying not to have any anxiety.” (Lemmen Report, R. 38-15, PageID #2492.) And
when Dr. Lemmen asked Messing how he was impaired at the time, Messing replied “I’m not.”
(Id.) Dr. Lemmen agreed with Dr. Franseen’s diagnosis of Major Depressive Disorder, but
found Messing “is not experiencing significant symptoms,” which suggested Messing’s
depression was “in remission.” (Id., PageID #2493.) Critically, Dr. Lemmen concluded “[t]here
is no objective evidence that [Messing] would not be able to practice as an attorney, should he
desire to do so.” (Id., PageID #2494.)
Messing tries to discredit Dr. Lemmen and his report in two ways. First, Messing argues
Dr. Lemmen is biased and describes Dr. Lemmen’s report as “an exercise in unfounded,
unqualified, question-begging.” (First Br. 35–36.) Courts are sometimes skeptical when an
insurance company repeatedly calls an expert who consistently draws conclusions in favor of the
company. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 832 (2003) (“[P]hysicians
repeatedly retained by benefits plans may have an incentive to make a finding of ‘not disabled’
in order to save their employers money and to preserve their own consulting arrangements.”).
However, Messing provides absolutely no evidence to suggest that Dr. Lemmen is biased against
his claim besides the bare allegation that Provident hired Dr. Lemmen to provide a second
opinion. Additionally, Messing takes issue with the fact that Dr. Lemmen concluded there was
no evidence that Messing could not return to work as an “attorney.” (Lemmen Report, R. 38-15,
PageID #2494.) Messing counters that at the time he first claimed to be disabled his occupation

-- 9 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 10
was “full-time personal injury trial attorney,” not simply an “attorney.” (First Br. 24–33.) We
need not fret over the differences between the meaning of “personal injury trial attorney” and
“attorney” because the Plan requires that we focus our analysis on what duties Messing
performed, not what title he held. Messing has not identified any duties that are required of an
“attorney” that are not required of a “personal injury trial attorney,” or vice versa. And
conveniently, Messing takes issue only with Dr. Lemmen’s use of the word “attorney,” even
though Dr. Callaghan concluded “[Messing] clearly remains disabled to tolerate the stresses
associated with work as an attorney.” (Callaghan Report, R. 38-17, PageID #2852.)
Finally, there is Dr. Callaghan’s report. His report agreed with Dr. Franseen and Dr.
Lemmen that Messing suffered from Major Depression, recurrent. Dr. Callaghan noted that
Messing’s diagnosis was “in remission” because of his “diligence and mindfulness to avoid
significant stressors.” (Callaghan Report, R. 38-17, PageID #2852.) However, Dr. Callaghan
disagreed with Dr. Lemmen’s finding “that there is ‘no objective evidence’ that Mr. Messing
would not be able to return to practice as an attorney, as Mr. Messing has a clear history of
exacerbation of major depression when exposed to stressors, particularly work stressors.” (Id.)
In short, Dr. Callaghan concluded that Messing “clearly remains disabled to tolerate the stresses
associated with work as an attorney.” (Id.)
The district court found Dr. Callaghan’s report “unconvincing,” (Op., R. 56, PageID
#3393), and Provident described it as “quite terse,” (R. 38-17, PageID #2879.) However, both
the district court and Provident rely on Dr. Franseen’s report, which is approximately the same
length. Thus, the length of Dr. Callaghan’s report provides no basis under these facts to find it
less credible than Dr. Franseen’s report.
All doctors acknowledged the fragile state of Messing’s mental health and that he should
be mindful to avoid stressful environments to prevent a relapse into a worse state of depression.
Dr. Franseen refused to render an opinion on Messing’s ability to return to work and Dr.
Lemmen couched his conclusion in a double negative—that there was no evidence that Messing
could not return to work. Only Dr. Callaghan directly addressed the question at issue: whether
Messing could return to work. He squarely stated Messing could not.

-- 10 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 11
To supplement his reliance on the experts’ reports, Messing also introduced affidavits
from three attorneys. To varying degrees, these affidavits state that lawyering is a stressful
occupation, that Messing lacks the ability to deal with stress, and that Messing has lost the skills
to return to the practice of law after a 20-year hiatus.
To the extent that the affidavits suggest lawyering is a stressful occupation, this Court has
already acknowledged as much. See, e.g., Heffernan v. UNUM Life Ins. Co. of Am., 101 F.
App’x 99, 106 (6th Cir. 2004) (“[T]here is no evidence that litigation can ever be conducted in a
low-stress environment.”). Provident does not dispute this fact. Additionally, to the extent the
affidavits suggest Messing no longer possesses the skills to return to the practice of law, they are
irrelevant. The question at issue is whether Messing suffers from a disability that prevents him
from working as a lawyer. The loss of skills necessary to work as a lawyer is a separate problem
that goes to his employability as a lawyer, not Messing’s disability. Finally, insofar as the
affidavits suggest Messing still suffers from depression, which prevents his ability to work as a
personal injury trial attorney, the affidavits are relevant. Accordingly, the attorneys’ affidavits
provide some support for Messing’s argument that he continues to suffer from a disability
preventing him from practicing as a trial attorney.
As mentioned above, to succeed on his motion on the administrative record, Messing
must show by a preponderance of the evidence that he remains unable to return to work as a
personal injury trial attorney. Javery, 741 F.3d at 700. Considering the doctors’ reports and the
affidavits together, Messing has met this burden. True, the reports and affidavits repeatedly
suggest that Messing’s mental health has been improving since he stopped working as a personal
injury trial attorney. But improvements in Messing’s health do not necessarily mean he can
return to working as a full-time personal injury attorney. In fact, as Dr. Callaghan noted,
Messing’s progress is likely attributable to his nearly two-decade abstention from practicing law.
Moreover, Dr. Lemmen’s report does not address or opine on whether Messing’s improvement is
directly tied to his practicing as an attorney.

-- 11 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 12
While the reports and affidavits support Messing’s claim, we note that the administrative
5
record also contains some evidence of Messing performing legal services. In 2004, a protest
gathered at a presidential campaign rally in Traverse City, Michigan. A local newspaper
reported on the protests, writing:
[Two individuals were] arrested and charged with disorderly conduct for
breaching the “sterile zone” set up by the Secret Service along the motorcade
route. And when their attorney, Mark Messing, attempted to speak with them, he
too was arrested. . . . Messing is outraged that [the individuals] were detained in
this manner, questioned without an attorney present, and that he was arrested for
identifying himself to police and attempting to represent his clients.
“Clearly no one is paying attention to the Bill of Rights here,” said Messing of the
arrest scenario, “. . . By arresting me they’ve compromised my clients’ abilities to
have their attorney of choice.[”]
(Newspaper Art., R. 38-3, PageID ##1018–19.) Notably, this representation occurred in 2004;
the same time Messing was telling Provident his depression prevented him from performing
substantially all the duties of being a trial attorney.
Undeniably, this article undercuts Messing’s argument that he cannot return to work. But
its probative value is minimal. The record does not explain the scope of Messing’s work for
those two individuals or whether he ever actually provided legal services, other than attempting
to speak to law enforcement officers on their behalf at a public protest. At best, the article
indicates that Messing “attempted” to perform some of his previous lawyering duties. And in
any event, we cannot say that one fourteen-year-old instance of attempting to represent two
individuals outweighs the contemporary evidence in Messing’s favor.
Considering the foregoing evidence, Messing has proven by a preponderance of the
evidence that he remains unable to return to work as an attorney. Because the district court has
held otherwise, we reverse.
5We are mindful to address only the 2004 protest incident as that is the only instance of Messing’s
lawyering conduct contained in the administrative record. McClain v. Eaton Corp. Disability Plan, 740 F.3d 1059,
1064 (6th Cir. 2014) (“When reviewing a denial of benefits under ERISA, a court may consider only the evidence
available to the administrator at the time the final decision was made.”). While Provident alleges that Messing
performed legal services on other occasions, none of those instances appears to be in the administrative record.

-- 12 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 13
B. Provident’s Counterclaim for Equitable Lien
i. Standard of Review
We review summary judgment rulings de novo. Est. of Romain v. City of Grosse Pointe
Farms, 935 F.3d 485, 490 (6th Cir. 2019). Summary judgment is only appropriate where the
movant has shown “there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a). A “factual dispute is genuine if it is
based on evidence that a reasonable jury could use to return a verdict for the nonmoving
party.” Est. of Romain, 935 F.3d at 490 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). In evaluating a summary judgment motion, the court is not “to weigh the evidence
and determine the truth of the matter” but rather must “determine whether there is a genuine
issue for trial.” Anderson, 477 U.S. at 249. The court must construe the evidence in the record
and all inferences to be drawn from it in the light most favorable to the non-movant. Kraus v.
Sobel Corrugated Containers, Inc., 915 F.2d 227, 229 (6th Cir. 1990).
ii. Application
Section 502(a)(3) of ERISA authorizes fiduciaries to bring civil suits “to obtain other
appropriate equitable relief . . . to enforce . . . the terms of the plan.” 29 U.S.C. § 1132(a)(3).
The “equitable relief” available under “§ 502(a)(3) is limited to those categories of relief that
were typically available in equity during the days of the divided bench.” Montanile v. Bd. of Trs.
of Nat. Elevator Indus. Health Benefit Plan, 577 U.S. 136, 142 (2016) (citation omitted)
(emphasis omitted). To recover in equity, insurers were historically required to “identify a
particular fund, distinct from an insured’s general assets, and the portion of that fund to which
the plan is entitled.” Hall v. Liberty Life Assur. Co. Of Bos., 595 F.3d 270, 275 (6th Cir. 2010).
Typically, equitable liens also require that the property to which the plaintiff seeks to attach a
lien “could clearly be traced to particular funds or property in the defendant’s possession.”
Montanile, 577 U.S. at 143. Thus, if funds were used to purchase a home or vehicle, a lien
would automatically attach; but if the funds were used to purchase consumables, such as food, no
lien could attach. Zirbel v. Ford Motor Co., 980 F.3d 520, 524 (6th Cir. 2020).

-- 13 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 14
Provident asked the district court to impose either an equitable lien for restitution or an
equitable lien by agreement on the allegedly overpaid funds. The district court held Provident
was not entitled to either lien. We agree.
C. Equitable Lien for Restitution
Equitable relief available under ERISA “includes restitution of ill-gotten plan assets or
profits[.]” Mertens v. Hewitt Assocs., 508 U.S. 248, 260 (1993). Equitable restitution focuses on
depriving the beneficiary of ill-gotten gains, as opposed to compensating a fiduciary for its loss.
Helfrich v. PNC Bank, Ky., 267 F.3d 477, 482 (6th Cir. 2001). In other words, equitable
restitution “seeks to punish the wrongdoer.” Id. at 481.
The district court held that to obtain an equitable lien for restitution, Provident needed to
prove that Messing’s statements “induced” it into making payments it otherwise would not have
made. (Op., R. 56, PageID ##3397–98.) According to the district court, because Provident had
failed to proffer any evidence that it would have terminated Messing’s benefits earlier, it failed to
prove his allegedly fraudulent statements induced the payments. Provident disagrees with the
district court’s holding, arguing that the remedy of restitution simply exists to “restor[e] the
6
status quo,” regardless of whether the damaged party was induced. Helfrich, 267 F.3d at 482.
We agree with the district court. Whether a party must prove inducement when seeking
recovery for overpayment of benefits in an ERISA action seems to be an unanswered question in
the Sixth Circuit. “To determine . . . the nature of the remed[y] sought, we turn to standard
treatises on equity, which establish the ‘basic contours’ of what equitable relief was typically
available . . .” Montanile, 577 U.S. at 142. According to the Restatement of Restitution, “[a]
transfer induced by fraud or material misrepresentation is subject to rescission and restitution.
The transferee is liable in restitution as necessary to avoid unjust enrichment.” Restatement
(Third) of Restitution and Unjust Enrichment § 13 (2011) (emphasis added). The Restatement is
clear that Provident must prove that the transfer of benefits to Messing was induced by fraud to
be entitled to an equitable lien for restitution.
6Although Provident now argues inducement is not a necessary element, it argued before the district court
that “a person who has paid money is entitled to restitution if they were induced by the fraud.” (Provident’s Br. in
Opposition to Pl.’s Mot. for Summ. J., R. 53, PageID #3165 (emphasis added).)

-- 14 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 15
Provident relies on one out-of-circuit case, Truitt v. Unum Life Ins. Co. of Am., 729 F.3d
497 (5th Cir. 2013), to argue reliance is not required. In that case, the Fifth Circuit held that
reliance was not an element of fraudulent misrepresentation under federal common law; and
therefore, the insurance company could seek reimbursement for wrongfully paid LTD benefits.
Id. at 516 (“[T]his court has not listed reliance as an element of fraudulent misrepresentation
under federal common law.”); see also Massachusetts Cas. Ins. Co. v. Reynolds, 113 F.3d 1450,
1455–56 (6th Cir. 1997). We agree that inducement is not an element of fraudulent
misrepresentation, at least in the Fifth Circuit. However, the distinct question before us is
whether a party must demonstrate inducement to be entitled to the equitable remedy of
restitution. The Restatement tells us inducement is required.
Accepting that Provident must prove Messing’s alleged misrepresentations induced the
overpayment of benefits, the question becomes whether Provident has proffered enough evidence
of inducement to survive summary judgment. The district court held Provident failed to meet its
burden.
To prove inducement, Provident exclusively relies on the deposition testimony of
Jennifer Crowley, the Senior Disability Specialist who commenced the review of Messing’s
claim in 2018. Crowley testified that if Provident “were notified that [Messing] had been
working in any capacity [it] would have updated medical, completed an updated review at that
time, contacted him to find out what the nature of his appearances were.” (Crowley Dep., R. 53-
6, PageID #3334.) Crowley stated that Messing’s work as a lawyer would be relevant to its
evaluation “[b]ecause it’s showing that he can perform those duties”; but she acknowledged that
performing an updated review of Messing’s claim does not necessarily result in the termination
of benefits. (Crowley Dep., R. 53-6, PageID ## 3336, 3338.)
As the non-movant, we must draw all reasonable inferences in favor of Provident. Doe v.
City of Memphis, 928 F.3d 481, 486 (6th Cir. 2019). But Provident has not offered enough
evidence to permit us to infer that it would have ceased Messing’s benefits payments. At best,
we can infer that Provident would have reviewed Messing’s claim. But by Crowley’s own
admission, a review of Messing’s claim does not necessarily mean it would have terminated his
benefits earlier. Worse still, the 2004 newspaper article that suggested Messing had attempted to

-- 15 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 16
represent two individuals was in Messing’s file, but Provident did nothing to investigate or
terminate his benefits. There is simply no evidence that Messing’s allegedly fraudulent
statements induced Provident to continue payments longer than it otherwise would have.
Accordingly, the district court did not err in granting summary judgment on Provident’s
counterclaim seeking an equitable lien for restitution.
D. Equitable Lien by Agreement
Besides seeking an equitable lien for restitution, Provident also seeks an equitable lien by
agreement. Provident argued that the Individual Disability Status Updates that Messing signed
from 2010 through 2017 included a condition that Messing would repay any overpayments. In
Provident’s opinion, these promises constitute a sufficient agreement to give rise to an equitable
lien by agreement. The district court disagreed and granted summary judgment for Messing on
this counterclaim because the Individual Disability Status Updates were not part of the original
insurance contract to which Messing agreed in 1985.
An equitable lien by agreement is “a type of equitable lien created by an agreement to
convey a particular fund to another party.” Montanile, 577 U.S. at 143; Cent. States, Se. & Sw.
Areas Health and Welfare Fund v. Health Special Risk, Inc., 756 F.3d 356, 365 (5th Cir. 2014)
(“ERISA-plan provisions do not create constructive trusts and equitable liens by the mere fact of
their existence; the liens and trusts are created by the agreement between the parties to deliver
assets.”). “[T]he strict tracing rules for equitable restitution [are] of no consequence” for
equitable liens by agreement. Sereboff, 547 U.S. at 365 (quotation marks omitted). Instead, the
overpayment itself is a fund distinct from the insured’s assets to which an equitable lien may
attach. Zirbel, 980 F.3d at 524. The lien “arises from and serves to carry out a contract’s
provisions.” US Airways, Inc. v. McCutchen, 569 U.S. 88, 98 (2013).
Provident continues to argue on appeal that the Individual Disability Status Updates that
Messing signed decades after the Plan went into effect are sufficient to create an equitable lien
by agreement. Messing responds that to give rise to an equitable lien by agreement, the promise
must exist in the original plan document, not a subsequent agreement.

-- 16 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 17
In Sereboff, the Supreme Court permitted an insurance company to recover benefits
because the health insurance plan included an “Acts of Third Parties” provision that required the
the Sereboffs to reimburse the insurer. 547 U.S. at 361. The plan in that case created an
obligation to repay the insurer the amount of benefits the Sereboffs received from other sources
in excess of their policy limit. In other words, the plan specifically identified a particular fund to
which the fiduciary would be entitled.
In Gilchrest v. UNUM Life Ins. Co. of Am., 255 F. App’x 38 (6th Cir. 2007), we
performed a similar analysis. In that case we considered whether the plan itself identified the
particular funds that would be subject to a lien. The plan at issue “provided that disability
benefits were to be reduced by ‘deductible sources of income,’ including, specifically, the
amount an employee receives or is entitled to receive in Social Security disability benefits.” Id.
at 39. We permitted UNUM to seek an equitable lien by agreement because “the Plan’s
overpayment provision asserts a right to recover from a specific fund distinct from Gilchrest’s
general assets.” Id. at 45.
Our sister circuits have focused their analysis on the terms of the ERISA plan at issue as
well. For example, in Bilyeu v. Morgan Stanley Long Term Disability Plan, 683 F.3d 1083 (9th
Cir. 2012), that court held that to be entitled to an equitable lien by agreement, three
requirements must be met:
First, there must be a promise by the beneficiary to reimburse the fiduciary for
benefits paid under the plan in the event of a recovery from a third party. Second,
the reimbursement agreement must specifically identify a particular fund, distinct
from the beneficiary’s general assets, from which the fiduciary will be
reimbursed. Third, the funds specifically identified by the fiduciary must be
within the possession and control of the beneficiary.
Id. at 1092–93 (cleaned up) (emphasis added). Although there is no indication that a separate
agreement formed the basis for Bilyeu’s promise to repay, the Ninth Circuit focused the first
element on whether the plan identified the particular fund that would be subject to the lien. See
also ACS Recovery Servs., Inc. v. Griffin, 723 F.3d 518, 521, 528 (5th Cir. 2013) (en banc)
(holding equitable lien by agreement attached when the plan contained a reimbursement
provision); Admin. Comm. for Wal-Mart Stores, Inc. Associates’ Health & Welfare Plan v.

-- 17 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 18
Horton, 513 F.3d 1223, 1227 (11th Cir. 2008) (noting that a “suit sounds in equity only if the
ERISA plan’s language identifies both the fund . . . out of which reimbursement is due to the
7
plan and the portion due the plan.” (citation omitted)).
Provident relies predominantly on one district court opinion that permitted a post-plan
agreement to serve as the basis for an equitable lien by agreement. See Bosin v. Liberty Life
Assur. Co. of Bos., No. 1:06-CV-186, 2007 WL 1101187 (W.D. Mich. Apr. 11, 2007). Although
there are some similarities between Bosin and Provident’s present appeal, that lone district court
opinion is less persuasive than the intervening Supreme Court and circuit court opinions. In light
of our case law in conjunction with that of the Supreme Court and our sister circuits, an equitable
lien by agreement for the reimbursement of overpaid benefits under § 502(a)(3)’s equitable relief
clause requires that the ERISA-qualified plan contain a promise to repay overpaid benefits.
Turning to the facts of this case, Provident’s counterclaim must fail. The Plan simply
does not provide for the recoupment of overpaid benefits. The closest the Plan comes to
requiring repayment of benefits is through the condition that “Benefits are payable while a period
of Total Disability continues” and that the beneficiary “must present satisfactory proof of [his]
loss.” (LTD Policy, R. 1-1, PageID #17.) But reading these provisions in tandem, at most,
imposes upon Messing a continuing obligation to prove his inability to work as a personal injury
trial attorney. This is far short of requiring Messing to refund overpaid benefits.
In Gilchrest, we held that “[w]hat is required [for an equitable lien by agreement] is that
the agreement specifically identify a particular fund—distinct from the defendant’s general
assets—and a particular share of that fund to which the plan was entitled.” Id. at 45 (quoting
Sereboff, 547 U.S. at 364). No provision of the Plan identifies a “particular fund” as the source
of the alleged repayments. Montanile, 577 U.S. at 143. Accordingly, Provident cannot obtain an
equitable lien by agreement.
7We recognize that the cases upon which we rely—Sereboff, Gilchrest, and the out-of-circuit cases—all
dealt with disputes in which there were only ERISA-qualified plans, not separate agreements to repay. Although
they may be distinguishable in some ways, we find that their analyses provide useful guidance for resolving this
appeal.

-- 18 of 19 --

Nos. 21-2780/2790 Messing v. Provident Life and Accident Ins. Co. Page 19
Finally, we note that to allow Provident to obtain relief through either an equitable lien
for restitution or an equitable lien by agreement would be illogical in light of our separate
holding that Messing remains disabled. It would make little sense to determine now that
Messing’s statements in the Individual Disability Status Updates—that he could not return to
work—were fraudulent. And practically, it would make little sense to require Provident to
resume LTD benefits payments to Messing while simultaneously permitting Provident to attach a
lien on Messing’s benefits payments.
III. CONCLUSION
For the foregoing reasons, we REVERSE the judgment of the district court insofar as it
affirmed Provident’s decision to terminate Messing’s benefits and AFFIRM the grant of
summary judgment on Provident’s counterclaims.

-- 19 of 19 --