Pension & Benefits News Wilmington firefighters who retired post-2005 may pursue claims for additional health insurance
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Friday, February 8, 2019

Wilmington firefighters who retired post-2005 may pursue claims for additional health insurance

By Pension and Benefits Editorial Staff

City of Wilmington firefighters who retired post-2005 were entitled to pursue their claims that a provision in a collective bargaining agreement required they be provided with more advantageous health insurance benefits as provided by a city personnel policy, Policy 402.1, ruled a Delaware Superior Court. The personnel policy, created in 2005, provided that the city shall provide the same level of health insurance benefits to public safety officers who retire from service as a direct or proximate result of a personal injury sustained in the line of duty while responding to a hot pursuit or emergency situation. However, the court declined to apply the personnel policy retroactively to provide additional health insurance benefits to pre-2005 retirees. Accordingly, the employer was granted its motion for summary judgment regarding pre-2005 retirees, but the motion was denied as to the post-2005 retirees.

Nine retired firefighters for the City of Wilmington brought claims against the city for breach of contract alleging it unlawfully denied health insurance benefits under the CBA. It was undisputed that each retiree received a disability pension after the employer determined that he or she was injured while in the line of duty. The retirees were members of a union that had a contract with the employer covering conditions of employment, including language that called for the receipt of additional benefits outside the provisions of the CBA.

Personnel policy. The parties filed cross-motions for summary judgment. According to the retirees, they should all be deemed eligible for additional benefits as a matter of law because they met the requirements under Personnel Policy 402.1. On the other hand, the employer argued, the employees failed to identify any specific agreement that had allegedly been breached.

Additional benefits. Each of the CBAs applicable to this case included an article entitled "Ordinances and Statutes," which provided that if the fire department provided benefits more advantageous to employees than the terms of the agreement, then the provisions of such ordinances or statutes shall prevail. On July 12, 2005, the city created its Personnel Policy 402.1, which provided that the city shall provide the same level of health insurance benefits to public safety officers who retire from service as a direct or proximate result of a personal injury sustained in the line of duty while responding to a hot pursuit or emergency situation, as the officer had when the incident occurred.

This policy was created in order to provide a policy and procedure addressing the Disabled Public Safety Officer’s Health Act of 1996. However, it turns out that there is no such statute. Rather, the applicable statute that mirrors the language found in Policy 402.1 is found in the federal "Omnibus Consolidated Appropriations Act. Nevertheless, it remains referenced in Policy 402.1.

Under the Appropriations Act, federal block grants issued under the Omnibus Crime Control and Safe Streets Act would withhold a percentage of funding in the event that a municipality decided not to provide its retired or separated public safety officers injured in the line of duty with the same or better level of health insurance benefits that were paid by the municipality at the time of retirement.

Hot pursuit or emergency situation. The retirees asserted that they had established entitlement to benefits under Policy 402.1 as a matter of law because of prior determinations that they suffered a physical condition that was deemed to be job related. However, the court disagreed.

The Wilmington City Code explained that certain diseases that result in total or partial disability are presumed to have been suffered while in the line of duty, but the Code does not include the "hot pursuit or emergency situation" language required to warrant eligibility under Policy 402.1. Although some of the retirees’ injuries were presumed to have occurred in the line of duty, that determination of disability did not made a finding required under Policy 402.1—that the injury was sustained in the line of duty while responding to a hot pursuit or emergency situation. Thus, while it was true that certain retirees qualified for benefits under a "Heart and Lung Bill," it could not be accepted as a matter of law that receiving such benefits equated to the entitlement of benefits under Policy 402.1.

Retroactive application. Next, the retirees asserted that Policy 402.1 should be apply retroactively through the Appropriations Act because both policy and statute include identical language. According to the employees, Policy 402.1 should have been or was intended to be created in 1996. Although they correctly pointed out that the "hot pursuit" and "emergency situation" language appeared in various iterations of Appropriations Acts dating back to 1997, there was nothing in the pre-2005 findings that the Appropriations Acts alone created "more advantageous benefits" referenced in the CBAs.

While federal funding may have been available through various provisions of the Appropriations Acts, the retirees presented no authority to support access to this funding so as to require the city to provide health insurance benefits to injured retirees prior to the enactment of Policy 402.1. Thus, the employer was granted its motion for summary judgment as to six employees who retired prior to the creation of Policy 402.1.

Private cause of action. As to the three remaining retirees, the court denied the employer’s motion for summary judgement. First the employer argued that the court should find that the Wilmington Code did not create a private cause of action under the Cort test adopted by Delaware. The test posed three questions: (1) Is the plaintiff of the class for whose special benefit the statute was enacted? (2) Is there any indication of legislative intent, express or implied, to create a private remedy or deny one? (3) Is it consistent with the underlying purpose of the legislative plan to imply a private remedy?

The cases cited by the employer in support of its position involved disciplinary action. Here, the retirees were not seeking relief from disciplinary and grievance procedure, nor alleging wrongful termination. Rather, they sought redress through various avenues, including Policy 402.1. The policy was not discretionary. Instead, it orders the city to provide the same level of health insurance benefits to a public safety officer who retires or is separated from service as a direct or proximate result of a personal injury sustained in the line of duty while responding to a hot pursuit or emergency situation.

The post-2005 retirees presented evidence from three sources, Policy 402.1, the Appropriations Act, and the CBA, to serve as the requisite conduits that may trigger their rights to pursue benefits that could have been deemed more "advantageous" under the CBAs. Because the city created mandates under Policy 402.1 that mirror the statutory language in the Appropriations Act, there was a genuine issue of material fact as to whether coupling of both policy and the Act invokes the "Ordinances and Statutes" provisions under the CBAs that would allow the retirees to exercise their rights to better health care insurance benefits mandated by Policy 402.1.

Accordingly, the employer’s motion for summary judgment was granted as the claims of the pre-2005 retirees, but the motion was denied as to the post-2005 retirees.

SOURCE: Brown v. City of Wilmington, (Del. Super), No. N26C-06-184-VLM, January 8, 2019.

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