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(District of New Jersey D.C. 01-cv-04183) - page 12 / 30

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Interpreting this provision, the Supreme Court has held that an insurance company with discretionary responsibility over the award of benefits under an employee benefit plan acts as a fiduciary under ERISA. See Aetna Health Inc. v. Davila, 542 U.S. 200, 220 (2004) (“[T]he ultimate decisionmaker in a plan regarding an award of benefits must be a fiduciary and must be acting as a fiduciary when determining a participant's or beneficiary's claim.”). Accordingly, at least to the extent that HN-NJ has discretion to determine claims covered by its policies, it is an ERISA fiduciary. Health Net characterizes a subsidiary as a “claims fiduciary” under 29 U.S.C. § 1133 if the subsidiary exercises discretion in making claims decisions under insured plans. Health Net maintains, however, that no Health Net entity is a fiduciary for any other purpose. We need not examine the particulars of the fiduciary obligations of the

authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. Such term includes any person designated under section 1105(c)(1)(B) of this title [providing for the designation of other fiduciaries in the plan instrument].

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