
    Barbara BELLAH, Plaintiff, v. AMERICAN AIRLINES, INC., Met Life, International Association of Machinists, and Does 1 through 25, inclusive, Defendants.
    No. CIV. S-08-0066 FCD GGH.
    United States District Court, E.D. California.
    Aug. 25, 2009.
    
      John Paul Henderson, Law Offices of John P. Henderson, Auburn, CA, for Plaintiff.
    Kenneth R. O’Brien, Littler Mendelson, Sacramento, CA, Rebecca A. Hull, Cari A. Cohorn, Sedgwick, Detert, Moran & Arnold, San Francisco, CA, for Defendants.
   MEMORANDUM AND ORDER

FRANK C. DAMRELL, JR., District Judge.

This matter is before the court on defendants American Airlines, Inc.’s (“AA”) and Met Life’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff Barbara Bellah (“plaintiff’ or “Bellah”) opposes defendants’ motions. The court heard oral argument on the motions on August 21, 2009. For the reasons stated herein, defendants’ motions are GRANTED.

BACKGROUND

Plaintiff Bellah worked as a flight attendant for Trans World Airlines, Inc. (“TWA”) from 1985 until 2001. (MUF ¶ 1; AUF ¶ 1.) In 1997, during' Bellah’s TWA employment, International Association of Machinists (“IAM”), the TWA Flight Attendant’s Union, applied, negotiated, and contracted for Long Term Disability (“LTD”) benefits for its flight attendant members from a company known as American Bankers Life Assurance Company (“ABLAC”). (DF ¶ 2.) Plaintiff enrolled herself in the ABLAC LTD Plan, which was effective from October 1,1997 through November 30, 2001. (See AUF ¶ 13.)

TWA filed for Title 11 Bankruptcy on January 10, 2001. (AUF ¶ 1.) Defendant AA purchased certain of TWA’s assets in April 2001 and incorporated those assets into a company known as TWA LLC. (MUF ¶ 2; AUF ¶¶ 3, 5.) AA did not purchase or assume TWA’s employee benefit plans; the Bankruptcy Court Order approving the sale specifically held that the asset transfer was free and clear of all employee related claims, known or unknown, accrued up to the date of sale. (AUF ¶ 4.)

Employees of TWA who continued working after AA acquired the TWA assets became employees of TWA LLC. (AUF ¶ 5.) Subsequently, AA created a new employee welfare benefit plan, the TWA Airlines LLC Universal Welfare Benefit Plan (the “Plan”) for the employees of TWA LLC and for TWA employees who were disabled and receiving disability benefits from TWA’s universal welfare benefit plan. (MUF ¶ 2; AUF ¶ 6.) The TWA LLC Plan was a “mirror image” plan to TWA’s universal welfare benefit plan and was in existence from April 9, 2001 through December 31, 2001. (AUF ¶ 8.) Under the TWA LLC Plan, Short Term Disability (“STD”) benefits were available for up to five years to flight attendants who met all terms and conditions. (MUF ¶ 3.) However, LTD benefits were available only to pilots, management, and flight dispatch officers; flight attendants were not eligible for LTD benefits under the TWA LLC LTD Plan. (MUF ¶ 3; AUF ¶ 12.) In December 2001, plaintiff filled out an “Attending Physician Statement” regarding her diagnosis and treatment; none of the boxes indicating (1) STD/Salary Continuance; (2) LTD; or (3) Unified Disability STD/LTD were checked. (DF ¶ 9; Ex. S to Bellah Decl. at AA-Bellah 1636.)

In November 2001, the ABLAC LTD policy that had been offered by IAM lapsed due to non-payment. (DF ¶ 5.) Plaintiff asserts that neither TWA, TWA LLC, AA, IAM, nor MetLife informed Bel-lah that the ABLAC policy was lapsing. (DF ¶ 7.)

On January 1, 2002, active TWA LLC employees became AA employees for purposes of pay and benefits, and they became participants under AA-sponsored health and welfare benefit plans. (AUF ¶ 8.) Those TWA employees who were disabled and receiving benefits from the STD coverage in the TWA LLC Plan continued to receive disability benefits if they met the requirements for coverage and benefits. (AUF ¶ 8.) AA offered an LTD Plan to Flight Attendants. However, the Plan contained the following exclusions and limitations:

If this coverage becomes effective but you are not at work because of a disability, you are not covered under this plan until you return to work and deductions are taken from your pay.
You are not covered under this plan for a disability if you received medical care or treatment for the disability within the three months before the effective date of coverage.

(Ex. A to Decl. of Ana M. Martinez in Supp. of AA’s Mot. for Summ. J. (“Martinez Deck”), filed June 18, 2009, at 91). In other words, LTD coverage was not available to flight attendants under AA’s LTD Plan unless they (1) were at or returned to work and (2) had not been on disability or received medical treatment for a disability in the prior three months. (Deck of Deborah L. Jameson in Supp. of AA’s Mot. for Summ. J. (“Jameson Deck”), filed June 18, 2009, ¶ 12.)

Bellah worked for TWA LLC as a flight attendant from April 2001 until August 2001, when she became totally disabled. (DF ¶ 1.) Plaintiffs last actual work day was August 6, 2001 when she was employed by TWA LLC. (AUF ¶ 9.) She submitted a claim to receive STD benefits under the TWA LLC Plan. (AUF ¶ 9.) The Claims Administrator, MetDisability, determined Bellah’s date of disability to be September 17, 2001, and approved the payout of benefits. (AUF ¶ 9.) Under the TWA LLC Plan, no further benefits were payable after September 16, 2006. (AUF ¶ 11.)

AA asserts that under the provisions of its LTD Plan, plaintiff never became a participant because she was not actively working on January 1, 2002. (AUF ¶ 9.) Further, Bellah never returned to work after August 2001, earned no wages as an AA employee, and had no deductions taken from her pay. (AUF ¶ 15.) Plaintiff was included in a reduction of force that included hundreds of Flight Attendants on January 1, 2003; she was never rehired. (AUF ¶ 24.)

In December 2001, American Airlines Human Resources sent a letter to plaintiff, informing her that she was currently on a Personal Medical Leave of Absence, which would convert to a Sick Leave of Absence on January 1, 2002. (Ex. AA to Deck of Barbara Bellah in Opp’n to Mot. for Summ. J. (“Bellah Deck”), filed Aug. 2, 2009.) The letter further informed that for the first two years of her leave, she was eligible for benefits at the same cost as an active employee; at the end of those two years, she would be offered COBRA. (Id.) While Bellah was on sick leave, she selected certain benefits during an open enrollment period. (AUF ¶ 16.) Plaintiff was eligible for enrollment for benefits including medical insurance, supplemental medical insurance, dental insurance, and voluntary personal accident insurance (“VPAI”). (AUF ¶ 16.) Plaintiff submits a copy of the benefits premium payment itemized cost from December 20, 2001. (Ex. U to Decl. of Barbara Bellah (“Bellah Decl.”), filed Aug. 2, 2009.) The Confirmation Statements lists “Long Term Disability” at a Monthly Contribution cost of $20.84. (Id.) The total for all benefits confirmed was $94.30, for which plaintiff submitted a check that was received in March 2002. (Id.; Ex. V to Bellah Deck; AUF ¶ 19.)

However, AA presents evidence that because plaintiff was not entitled to LTD benefits, her payments were never allocated for such benefits. Specifically, AA presents evidence that the check for $94.30 was not received and credited until March 7, 2002, even though Bellah’s obligation to pay for benefits began on January 1, 2002. That payment was allocated between medical benefits, supplemental medical, dental, and VPAI; because no payments had been received in January or February 2002, a balance of $119.54 remained after the check was applied. (AUF ¶ 19.) Plaintiff continued to make payments on May 16, 2002, June 24, 2002, August 5, 2002, and January 9, 2003. (AUF ¶¶ 20-23.) Funds were allocated to medical, supplemental medical, dental, and VPAI; no funds were allocated to an LTD Plan, and a balance always remained due. (AUF ¶¶ 20-23.)

At times during MetLife’s administration of plaintiffs STD benefits, MetLife personnel referred to plaintiffs claim as one for LTD benefits. (MUF ¶ 6.) Indeed, in at least one conversation with plaintiffs counsel, MetLife personnel referred to plaintiffs benefits as LTD benefits; the representative also stated that the maximum duration under the Plan was five years, consistent with plaintiffs STD Plan. (MUF ¶7.) However, on September 24, 2002, a MetLife representative informed plaintiff that she did not have an LTD Plan, and on February 10, 2003, a MetLife representative informed plaintiffs counsel the same. (MUF ¶ 9; ADMIN 248, 259.) Subsequently, though, MetLife sent a letter to Bellah on April 5, 2005, informing her that LTD benefits would “continue under the any occupation provision of the plan” and would terminate when she was able to return to work, no longer disabled, or when she turned 65. (MUF ¶ 8; ADMIN 334.)

On August 29, 2006, MetDisability notified plaintiff via written correspondence of the upcoming termination of her STD benefits. (AUF ¶ 10; MUF ¶ 10.) It specifically advised Bellah that “you will reach your maximum benefits duration date on September 16, 2006 at which time your STD benefits will cease to be payable,” and that the claim file would be closed. (AUF ¶ 10; MUF ¶ 10.) By letter dated October 5, 2006, plaintiffs attorney sought confirmation that MetLife intended “to honor Bellah’s LTD benefits” as previously indicated in the April 5, 2005 letter. By letter dated October 24, 2006, MetLife informed plaintiff and plaintiffs counsel that the April 5, 2005 letter included incorrect information and that plaintiff was only eligible for STD benefits through AA and MetLife. (MUF ¶ 12; ADMIN 311-13.) By letter dated November 21, 2006, plaintiffs counsel requested a second review of MetLife’s determination that Bellah was not entitled to LTD benefits through Met-Life; counsel enclosed copies of Bellah’s paystubs from December 2000 and January 2001 that reflected deductions taken for “FA LTD.” (MUF ¶ 13; ADMIN 309-10.) These deductions from plaintiffs pay were for the optional LTD coverage offered to TWA flight attendants by AB-LAC. (MUF ¶ 14.) MetLife had no involvement with or connection to the LTD Plan insured by ABLAC. (MUF ¶ 15.) Upon second review, MetLife upheld its determination that Bellah was not entitled to LTD benefits on the ground that the claim was decided and paid in accordance with the applicable STD Plan. (MUF ¶ 16.) Plaintiff appealed to AA, which upheld MetLife’s decision on the basis that the claim was processed in accordance with the applicable STD Plan. (MUF ¶ 17.) By letter dated May 25, 2007, Deborah Jame-son, on behalf of AA specifically noted:

LTD coverage was NOT sponsored by TWA, Inc. If a TWA Flight Attendant elected to purchase LTD coverage through his/her union (IAM), TWA acted only as the premium collector (authorizing deductions from its paychecks), passing such premium contributions on to the LTD carrier. The LTD payroll deductions referenced in your letter represent the optional LTD coverage Ms. Bellah purchased though the IAM during her employment with TWA. Such LTD deduction did not represent LTD coverage under the TWALLC Plan. As such, your request for payment of LTD benefits under the TWALLC Plan is denied. Should you wish to pursue this matter on Ms. Bellah’s behalf, you should contact the IAM.

(Ex. B. to Supp. Decl. of Deborah L. Jameson (“Supp.Jameson.Decl.”), filed Aug. 14, 2009, at 5-6.)

Plaintiff filed a complaint for violation of the Employee Retirement Income Security Act (“ERISA”), Title 29, United States Code Chapter 18, asserting that she is owed long term disability benefits from AA, MetLife, and/or IAM. (Compl., filed Jan. 10, 2008). On April 22, 2009, the court granted defendant IAM’s motion for summary judgment on the basis that plaintiff failed to raise a triable issue of fact that IAM was a fiduciary for purposes of liability under ERISA. Subsequently, defendants AA and MetLife filed motions for summary judgment.

STANDARD

The Federal Rules of Civil Procedure provide for summary judgment where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). The evidence must be viewed in the light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party fails to meet this burden, “the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir.2000). However, if the nonmoving party has the burden of proof at trial, the moving party only needs to show “that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548.

Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evi-dentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire & Marine, 210 F.3d at 1107. Instead, through admissible evidence the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e).

ANALYSIS

Defendant AA moves for summary judgment on the basis that AA did not at any time offer to provide plaintiff LTD coverage and that she was expressly ineligible for LTD coverage under the plan, unless and until she returned to duty; thus, defendant AA asserts that it has no liability for the non-payment of LTD benefits under ERISA. Similarly, defendant MetLife moves for summary judgment because it had no connection to any LTD plan under which plaintiff could recover benefits. Plaintiff argues that AA’s LTD Plan conferred benefits on former TWA employees on disability without requiring requalification for benefits and that MetLife is similarly liable as administrator of the AA LTD Plan.

Pursuant to 29 U.S.C. § 1132(a)(1)(B), a civil action may be brought by a participant to recover benefits due to him or her under the terms of an ERISA Plan. The interpretation of an ERISA plan is governed by federal common law. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Menhorn v. Firestone Tire & Rubber Co., 738 F.2d 1496, 1499-1500 (9th Cir.1984).

A. Continuance of LTD Benefits Under the Tax Code

Plaintiff argues that Bellah was entitled to benefits under the LTD policy pursuant to relevant provisions of the Internal Revenue Code. Specifically, plaintiff argues that because Title 26 treats parent and subsidiary corporations as a single employer for tax purposes, Bellah was entitled to have her service under TWA LLC treated as service for American. Defendants argue that because it is undisputed that LTD benefits were not available to plaintiff through TWA or TWA LLC and because the AA LTD Plan explicitly excluded plaintiff from coverage because she was never an active employee after the effective coverage date, Bellah was not entitled to LTD benefits under any plan; they also argue provisions of the tax code cannot enlarge employer obligations under ERISA.

26 U.S.C. § 414(a) provides that “in any case in which the employer maintains a plan of a predecessor employer, service for such predecessor shall be treated as service for the employer.” 26 U.S.C. § 410(b)(6)(C)(i) provides that if any member becomes or ceases to be a member of a group due to dispositions or acquisitions, the minimum coverage requirements of a trust are treated as having been met under certain circumstances. Nothing in these sections explicitly mentions enlargement of benefits under ERISA based upon the Tax Code.

While the Tax Code and Treasury regulations govern tax qualification of ERISA plans, such provisions do not “amplify the substantive requirements of ERISA.” Bronk v. Mountain States Telephone & Telegraph, Inc., 140 F.3d 1335, 1339 (10th Cir.1998). In Abraham v. Exxon Corp., 85 F.3d 1126 (5th Cir.1996), the plaintiffs argued that their exclusion from the employer’s benefits plan violated ERISA and certain Treasury regulations. The Fifth Circuit held that Treasury regulations do not create substantive rights under ERISA. The Abraham court explained that Treasury regulations

purport to do no more than determine whether a plan is a qualified tax plan. Failure to meet those requirements of those regulations results in the loss of a beneficial tax status; it does not permit a court to rewrite the plan to include additional employees.

Id. at 1130. The Fifth Circuit acknowledged that in some instances, ERISA expressly incorporated provisions of the Tax Code and Treasury regulations; however, where such inclusion was not explicit, the court was not inclined to find implicit incorporation or modification. Id.; see Edes v. Verizon Communications, Inc., 288 F.Supp.2d 55, 63 (D.Mass.2003) (“Most courts have rejected the argument that the Treasury regulations create a right to rewrite an ERISA plan.”); cf. Burrey v. Pacific Gas & Elec. Co., 159 F.3d 388 (9th Cir.1998) (considering Internal Revenue Code definitions of employees to determine whether employees had standing to bring an ERISA claim, not whether such employees were entitled to benefits under the plan).

Similarly, in Bronk, the Tenth Circuit held that 26 U.S.C. §§ 410 and 414 did not broaden coverage to include employees who did not meet a plan’s minimum age and service requirements. 140 F.3d at 1339. The Bronk court noted that to hold otherwise would render the plan section meaningless because it would mean that “all employees who satisfy ERISA’s minimum participation requirements and meet the definition of common law employees must be included within a plan”; as such, “[n]o employees could ever be excluded under that section of the plan.” Id. Therefore, the Tenth Circuit concluded that ERISA was not implicitly modified by the Internal Revenue Code or Treasury regulations. Id.; Montesano v. Xerox Corp., 117 F.Supp.2d 147, 162 (D.Conn.2000) aff'd in relevant part, 256 F.3d 86, 89 (2d Cir.2001); see also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (“ERISA does not mandate that employers provide any particular benefits .... ”). But see Renda v. Adam Meldrum & Anderson Co., 806 F.Supp. 1071, 1082 (W.D.N.Y.1992) (holding that regulations “are useful for extracting subtler shades of meaning necessary to paint a more detailed portrait of an individual’s substantive rights under ERISA”).

The court finds the reasoning of Abraham and Bronk persuasive. If Congress intended employee rights to be expanded under 26 U.S.C. §§ 410(b)(6)(C)(i) and 414(a)-(b), “it would have expressly so provided.” Bronk, 140 F.3d at 1339. However, it did not do so. As such, the court concludes that the tax qualification provisions of the Internal Revenue Code do not modify a LTD benefit plan to mandate inclusion of employees whom it has permissibly excluded. See id. Moreover, even if defendants’ exclusion of plaintiff violated the Internal Revenue Code, plaintiff has failed to submit any authority that would permit the court to rewrite the Plan. See Edes, 288 F.Supp.2d at 64 (“While [the employer’s] classification may well be unreasonable and arbitrary under the Treasury regulations, ... this failure to comply ... does not permit the Court to rewrite the plan.”). Accordingly, plaintiffs’ argument her right to benefits under the AA LTD Plan is compelled by 26 U.S.C. §§ 410(b)(6)(C) and 414 is unpersuasive.

B. Continuance of LTD Benefits Due to Prior Service

Plaintiff also argues that she is entitled to benefits under the AA LTD Plan because, in December 2001, AA represented that she would be entitled to such benefits. In support of this assertion, plaintiff proffers a letter from AA Human Resources stating that for the first two years of her sick leave, she was eligible for benefits at same cost as an active employee, and thereafter she would be offered COBRA. (Ex. AA to Bellah Decl.) Plaintiff asserts that this letter supports her assertion that she would be “credited and in essence ‘grandfathered in’ for prior service when the new benefits package became effective on January 1, 2002.” (Pl.’s Opp’n, filed Aug. 2, 2009, at 10.) Plaintiff admits that the letter does not mention the word “grandfathered.” (Id. at 9.) Nor does the letter provide that plaintiff would be considered an active employee while on a Sick Leave of Absence; rather, the letter merely provides that “the company will provide benefits for you at active rates.” (Ex. AA. to Bellah Decl.) Furthermore, there is no mention of the AA LTD Policy or any modification of the plain language of the LTD Policy that excluded coverage for employees not at work until they returned to work and deductions were taken from their pay. Accordingly, plaintiffs’ argument that AA “grandfathered” her prior service such that she was an eligible active employee under the AA LTD Plan is unpersuasive.

C. Equitable Estoppel

Alternatively, plaintiff argues that she can recover on an equitable estoppel theory.

“An ERISA beneficiary may recover benefits under an equitable estoppel theory upon establishing a material misrepresentation, reasonable and detrimental reliance upon the representation and extraordinary circumstances.” Pisciotta v. Teledyne Indus., 91 F.3d 1326, 1331 (9th Cir.1996) (citing In Re Unisys Corp. Retiree Medical Benefit “ERISA” Litig., 58 F.3d 896, 907 (3d Cir.1995)). Furthermore, the Ninth Circuit has imposed two prerequisites to a claim for equitable estoppel under ERISA. Id. “First, the provisions of the plan at issue must be ambiguous such that reasonable persons could disagree as to their meaning or effect.” Id. (citing Greany v. W. Farm Bureau Life Ins. Co., 973 F.2d 812, 821 (9th Cir.1992)). Second, material oral representations must have been made to the employee regarding the interpretation of the plan. Id. However, “[a] plaintiff cannot avail himself of a federal ERISA estoppel claim based upon statements of a plan employee which would enlarge his rights against the plan beyond what he could recover under the unambiguous language of the plan itself.” Greany, 973 F.2d at 822.

The undisputed evidence submitted in this case establishes that AA’s LTD Plan, which was administered by MetLife, was not ambiguous and clearly excluded plaintiff from coverage. The Plan explicitly provided that an employee not at work because of a disability at the time coverage becomes effective is not covered for LTD benefits “until you return to work and deductions are taken from your pay.” (Ex. A to Martinez Decl. at 91.) Plaintiffs equitable estoppel argument seeks a determination that she is entitled to LTD coverage under the plan even though she was on disability leave at the time coverage became effective, January 1, 2002, and despite the fact that she never returned to work. Such a determination would enlarge her rights beyond what is allowed under the unambiguous language of the Plan.

Further, plaintiffs contention that she paid for LTD disability benefits after January 1, 2002, is belied by the undisputed evidence. While plaintiff may have believed she was paying for LTD payments, the undisputed evidence reveals that the payments Bellah submitted were only applied to her medical benefits, supplemental medical, dental, and VPAI; indeed, her payments did not even fully cover these benefits.

Moreover, plaintiffs’ assertion that Met-Life compelled her to apply for Social Security disability benefits, which was solely a function of the LTD Plan, mischaracter-izes the facts. MetLife presents evidence that the TWA LLC STD Plan provided:

If you are covered under the Federal Social Security Act, your weekly disability income will be reduced by an amount equal to the amount you and your Family Members would receive were you receiving periodic cash payments under Social Security, unless you submit proof ... that you have applied for Social Security benefits and they are not payable.

(ADMIN 117.) As such, Social Security disability benefits affected both the AA LTD Plan as well as the STD Plan under which plaintiff received benefits for five years.

While the court agrees that plaintiffs communications with MetLife created a less than clear picture of her coverage, this does not alter the standards this court must apply. The language of the AA LTD Plan and its exclusions were clear and unambiguous. Therefore, MetLife’s subsequent miscommunications, though troubling, are irrelevant. Moreover, these miscommunications occurred well after the filing date for any claim for LTD benefits with ABLAC. As such, plaintiff did not suffer any prejudice as a result of Met-Life’s statements.

Therefore, because the court finds that granting the equitable relief sought by plaintiff would enlarge benefits beyond those granted by the clear, unambiguous language of the AA LTD Plan, plaintiffs argument that she is entitled to equitable estoppel is unpersuasive.

Accordingly, defendants’ motions for summary judgment are GRANTED.

D. Attorneys’ Fees

Defendant MetLife seeks attorneys fees and costs pursuant to 28 U.S.C. § 1927. Specifically, MetLife argues that it is entitled to fees because plaintiff was clearly not a participant in the plan at issue.

Section 1927 allows the court to award fees against “any attorney ... who so multiplies the proceedings in any case unreasonably and vexatiously.” This section is not specific to any statute, but applies to any civil suit in federal court. Hyde v. Midland Credit Mgmt., Inc., 567 F.3d 1137, 1141 (9th Cir.2009). Further, the statute “explicitly provides for remedies against offending attorneys.” Id.

Attorneys fees under § 1927 are appropriate if an attorney’s conduct is in bad faith; recklessness satisfies this standard. B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1107 (9th Cir.2002); Barber v. Miller, 146 F.3d 707, 711 (9th Cir.1998) (“An award of sanctions under 28 U.S.C. § 1927 or the district court’s inherent authority requires a finding of recklessness or bad faith.”). The Ninth Circuit has also required a finding of subjective bad faith, “which is present when an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent.” Id. (emphasis in original) (quoting In re Keegan Mgmt. Co., Sec. Lit., 78 F.3d 431, 436 (9th Cir.1996)).

Based upon the submissions of the parties in this case, the court does not find that plaintiffs counsel unreasonably or vexatiously multiplied the proceedings in this litigation. While plaintiffs counsel’s arguments were ultimately unpersuasive, the court does not find them to be so patently frivolous as to evidence subjective bad faith. Accordingly, defendant Met-Life’s motion for fees and costs is DENIED.

CONCLUSION

For the foregoing reasons, defendants American Airlines and MetLife’s motions for summary judgment are GRANTED. Defendant MetLife’s motion for attorney fees is DENIED. The Clerk of Court is directed to close this case.

IT IS SO ORDERED. 
      
      . Unless otherwise noted, the facts herein are undisputed. (See PL’s Response to Def. Met Life Stmt, of Undisputed Facts in Supp. of Mot. for Summ. J. (“MUF”), filed Aug. 2, 2009; Def. AA’s Reply to Pl.’s Response to Stmt, of Undisputed Facts in Supp. of Mot. for Summ. J. ("AUF”), filed Aug. 14, 2009.) Where the facts are disputed, the court recounts plaintiff’s version of the facts. (See Pl.'s Stmt, of Disputed Facts ("DF”), filed Aug. 2, 2009.) Because plaintiff generally asserts that certain facts are "disputed” without any explanation, the court looks to the underlying evidence to determine whether any genuine issue of fact exists.
      Defendant AA filed objections to plaintiff's evidence. Plaintiff’s declarations are rife with hearsay and statements unsupported by proper foundation. The court relies only on admissible evidence herein. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.”).
     
      
      . ABLAC is not named as a defendant in this action.
     
      
      . Plaintiff asserts that the policy lapsed due to non-payment by IAM. However, the court previously found that defendant IAM presented undisputed evidence that TWA, not IAM, was responsible for submitting payments to AB-LAC, and that IAM was not a fiduciary under ERISA. (Mem. & Order, 623 F.Supp.2d 1183, 1188-89 (E.D.Cal.2009))
     
      
      . Plaintiff submits Exhibit CC, a document entitled "Rules and Instructions Sheet for Sick, Maternity, Injury on Duty Leaves of Absence for Flight Attendants.” This document is not mentioned or authenticated by any of plaintiff's declarations in support of her opposition. Because no foundation was laid, the document was not authenticated, and it is unclear what this document is, Exhibit CC is inadmissible.
      Plaintiff also asserts that under the AA LTD Plan, she became eligible for coverage on the effective date of January 1, 2002, because she was not actually at work due to a health conditions. (DF ¶ 26.) None of the evidence cited by plaintiff supports this assertions. Indeed, the AA LTD Plan expressly contradicts this assertions. (Ex. A to Martinez Deck at 91.)
     
      
      . Based upon these dates, the paystubs re-fleeted payments made to plaintiff before and immediately after TWA filed for bankruptcy and before AA acquired any assets.
     
      
      . Plaintiff asserts that this fact is disputed, but offers no competent evidence to raise a triable issue of fact that MetLife was involved in the LTD Plan insured by ABLAC.
     
      
      . There is no evidence that plaintiff ever made a claim under ABLAC policy. AA did not purchase or assume any of TWA’s employee benefit plans through the bankruptcy sale. Further, any claim based thereon is barred by the "free and clear” provisions of the Sale Order. See In re Trans World Airlines, Inc., 322 F.3d 283 (3d Cir.2003) (affirming the authorization of the sale of TWA assets to AA free and clear of claims by the EEOC and a plaintiff class suing for sex discrimination in violation of Title VII). It is also undisputed that the TWA LLC policy did not offer or provide LTD benefits to Flight Attendants. Furthermore, plaintiff fails to address the applicability of either of these policies in her opposition. As such, to the extent plaintiff seeks relief under ERISA pursuant to either of these policies, defendants are entitled to summary judgment on these claims as there are no “benefits due under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).
     
      
      . Plaintiff also argues that she is eligible under the AA LTD Plan based upon representations made by the AA and MetLife. The court addresses those arguments herein.
     
      
      . The court finds unavailing plaintiff's argument that the language of the Plan was ambiguous based upon the Internal Revenue Code sections, as discussed supra.
      
     
      
      . Moreover, federal courts have explicitly noted that COBRA continuation rights do not apply to disability insurance. Austell v. Raymond James & Assocs., Inc., 120 F.3d 32, 33 (4th Cir.1997); Moffitt v. Whittle Communications, L.P., 895 F.Supp. 961, 968 n. 6 (E.D.Tenn.1995); Burgess v. Unum Life Ins. Co., No C-95-0229, 1995 WL 581151, at *3 n. 3 (N.D.Cal. Sept. 25, 1995) ("Long-term disability coverage is explicitly exempted from COBRA, since it is not considered a 'medical benefit’ defined by COBRA.”).
     
      
      .Under the ABLAC LTD Plan, a claimant must give notice of the claim to ABLAC within 20 days of loss and must provide proof of disability within 90 days. Because plaintiff's last day of work was August 6, 2001, absent any applicable exceptions, none of which have been argued by plaintiff, proof of disability was required to be made to ABLAC no later than November 5, 2001. (See Ex. C to Decl. of Robert Haynes [Docket # 22], filed May 28, 2008.) The earliest communication pointed to by plaintiff in which MetLife referred to LTD benefits was a letter dated March 31, 2003. (Ex. B to Decl. of John P. Henderson in Opp’n to Mot. for Summ. J. ("Henderson Decl.”), filed Aug. 2, 2009.)
     