The Hidden Law of ERISA: An Introduction

I don't always understand the thinking of the federal courts with regard to selecting opinions to publish and those not to publish. Certainly, I understand the criteria they seek to apply, but sometimes the end result is curious. The federal district court for Massachusetts recently chose not to publish a summary judgment opinion in the case of Kansky v. Aetna Life Insurance Company and Coca-Cola Enterprises. Obviously, the court' s prerogative. The opinion, however, is 42 pages long and surveys a range of issues of significance in ERISA benefits litigation, although on many of those points it may not break any new ground. Of some note, though, the court explicitly addressed and distinguished as inapplicable to the case before it a leading published First Circuit decision on preexisting condition limitations, Glista v. Unum Life Insurance Company, 378 F.3d 113(1st Cir. 2004). Glista is regularly cited by plaintiffs challenging plan determinations concerning preexisting condition limitations, and it would certainly be useful for both the bar and courts to have access to a well reasoned opinion, such as the Kansky decision, that explains when Glista is inapplicable.

As this case illustrates there is, in essence, a hidden law of ERISA, one that cannot completely be researched through published decisions. I speak here not only of final rulings that are not published but might at least be available on westlaw or similar services, but also of interlocutory rulings that are unlikely ever to "be published on westlaw," as brief writers who are violating court rules about citing unpublished decisions like to say.