Click here to read more about the 7th Circuit’s decision in Kenseth v. Dean Health Plan, Inc.

In a concurring opinion in the 7th Circuit’s June 13 decision in Kenseth v. Dean Health Plan, Inc., Judge Daniel Manion distinguished it from the Supreme Court’s Cigna Corp. v. Amara. Specifically, he disagreed with the panel decision that if Deborah Kenseth can demonstrate a breach of fiduciary duty as set forth in the 7th Circuit’s 2010 Kenseth decision, and she can show that the breach caused her damages, she may seek appropriate remedies including monetary damages.

Instead Manion asserted, “That Cigna concluded that a surcharge might be an appropriate remedy given the facts of the case, does not mean that it is an appropriate remedy in this, or other, cases.” The allegations in Cigna suggested intentional misrepresentation, a more serious charge than Kenseth’s claims of negligent misrepresentation, and the decision on monetary relief is highly dependent on the present circumstances, Manion said.

“Judge Manion took probably one of the few approaches the court could after Cigna in correcting the panel and saying, no, Cigna does not provide for monetary damages, [Kenseth] is a different situation,” says Nancy Ross, a partner at McDermott Will & Emery.