facts to establish that “(1) the defendant was a fiduciary; and (2) the defendant

breached a fiduciary duty; and (3) the plaintiff suffered damages.” Bafford, 994

F.3d at 1026 (first citing 29 U.S.C. § 1109(a); and then citing Mathews v. Chevron

Corp., 362 F.3d 1172, 1178 (9th Cir. 2004)).

To the extent that McIver is challenging Boeing’s and EBPC’s conduct of

solely calculating and collecting life insurance premiums, we affirm the district

court’s dismissal of McIver’s breach of fiduciary duty claim because the district

court correctly concluded that these actions were ministerial. See Bafford, 994

F.3d at 1028.

To the extent McIver also alleges that EBPC, as a Plan3 fiduciary, and

Boeing, as a functional fiduciary, 29 U.S.C. § 1002(21)(A), were performing

fiduciary functions when they continued to charge, deduct, and collect premiums

after receiving his Qualified Domestic Relations Order (“QDRO”) notice stating

that he was divorced, we conclude that McIver plausibly alleged that EBPC and

Boeing were acting as fiduciaries when they continued to collect premiums in

2 According to the Policy, coverage for a dependent, including a “lawful spouse,” will terminate on the earliest of, among other things, “the date the person ceases to be a Dependent.” 3 The Boeing Company Employee Health and Welfare Benefit Plan.

3 these circumstances. Therefore, the allegations in the SAC were sufficient to

defeat a motion to dismiss as to the existence of a fiduciary relationship. See

Pegram v. Herdrich, 530 U.S. 211, 226 (2000); Aetna Health Inc. v. Avila, 542

U.S. 200, 220 (2004).

We also conclude that McIver plausibly alleged that Boeing and EBPC

breached their fiduciary duties by failing to investigate McIver’s ex-wife’s

continued eligibility for dependent life insurance coverage after McIver submitted

the QDRO stating that he was divorced.4 See 29 U.S.C. § 1104(a)(1) (duty of

loyalty); 29 U.S.C. § 1104(a)(1)(B) (duty of prudence); Barker v. Am. Mobil

Power Corp., 64 F.3d 1397, 1403 (9th Cir. 1995) (ERISA’s duty to act in the best

interests of the plan participants and beneficiaries includes a duty to investigate

suspicions that one has concerning the plan); see also Patterson v. Reliance

Standard Life Ins. Co., 986 F. Supp. 2d 1140, 1150 (C.D. Cal. 2013). Thus, these

allegations relating to duty in the SAC were sufficient to defeat a Rule 12(b)(6)

motion, and we reverse the district court’s dismissal of the breach of fiduciary

claims against Boeing and EBPC, and remand for further proceedings. On remand,

however, when considering the merits of McIver’s claims, the district court will

4 The QDRO incorrectly stated that McIver and his wife were divorced on April 1, 2019, when in fact, the Judgment of Dissolution was filed on January 30, 2020. Although a change of marital status had not occurred at the time that McIver submitted the QDRO, Boeing and EBPC may have had a duty to investigate whether McIver’s ex-wife remained eligible for dependent coverage.

4 need to determine in the first instance whether McIver provided sufficient notice to

trigger any fiduciary duties owed by Boeing and the EBPC, and if so, whether

these entities breached those duties. See Becker v. Williams, 777 F.3d 1035, 1041–

42 (9th Cir. 2015) (examining substantial compliance with governing plan

documents pursuant to state law).

McIver has not plausibly alleged that MetLife had a fiduciary duty to

monitor the eligibility of Boeing employees and their dependents for insurance

coverage on a daily basis. Further, McIver did not plausibly allege that MetLife

had notice or knowledge of his divorce when it continued to accept premiums from

Boeing before it correctly denied his benefit claim. We affirm the district court’s

dismissal of the breach of fiduciary duty claim against MetLife.

2. McIver also challenges the dismissal of his claim against MetLife for

recovery of plan benefits under 29 U.S.C. § 1132(a)(1)(B). McIver asserts that the

incontestability clause in the Policy bars MetLife from denying his claim for

benefits. We disagree. The Policy’s incontestability clause applies to statements

regarding insurability made at the time of a new application or enrollment. The

incontestability clause does not apply to McIver’s statements regarding his change

in marital status and any related eligibility determination. Thus, we affirm the

district court’s dismissal of the claim for recovery of plan benefits.

5

REVERSED AND REMANDED IN PART. AFFIRMED IN PART.5

5 Each party to bear its own costs.

6