The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
Pending is Plaintiff's Motion for Partial Summary Judgment*fn1 to which Defendants responded.*fn2 Also pending is Defendants' Motion to Strike*fn3 to which Plaintiff responded.*fn4
This is an ERISA claim for benefits under 29 U.S.C. § 1132 (a)(1)(b). Plaintiff Teresa Beasley was an employee of Wal-Mart Stores, Inc. ("Wal-Mart") and its subsidiary, Claims Management Inc. ("CMI"), from 1991 through 2004. Plaintiff participated in Wal-Mart's Long Term Disability Plan (the "Plan"), which was insured and underwritten by Hartford Life and Accident Insurance Company ("Hartford").
Plaintiff contends that she has exhausted her administrative remedies and seeks Partial Summary Judgment on this issue. Defendants contend that Plaintiff failed to submit a written appeal, and, therefore, failed to exhaust her administrative remedies. Defendants also contend that Plaintiff's affidavit, which was attached to her motion, should be stricken, because it is not part of the administrative record.
Plaintiff worked for CMI until June 27, 2004, and was a participant in a Plan insured by Hartford. The Plan provides for an internal appeal process if an application for disability is denied.*fn5 Plaintiff submitted an Application for Benefits under Wal-Mart's Plan on August 16, 2004 and January 7, 2005.*fn6
Her second application was denied January 25, 2005.*fn7
The denial letter explained the internal appeal process:
If you do not agree with our denial, in whole or in part, and you wish to appeal our decision, you or your authorized representative must write to us within one hundred eighty (180) days from your receipt of this letter. Your appeal letter should be signed, dated and clearly state your position.*fn8
It is uncontested that Hartford first received written notice from Plaintiff's lawyer on October 6, 2005 -- after the 180 days had lapsed.*fn9 Despite the untimeliness of these letters, Plaintiff maintains that she verbally appealed Hartford's denial. Plaintiff attached an affidavit to her Motion setting out the actions she took to appeal the denial.*fn10
According to her affidavit, she made a telephone call to Angela Whitlow (a CMI employee) and to Hartford after receiving the denial letter, and she delivered additional documentation to Ms. Whitlow, who forwarded it to Hartford.*fn11 Plaintiff was called sometime later by Ms. Whitlow and told that Hartford would not change its initial decision.*fn12
Defendants contend that this affidavit should not be considered, because it is not part of the administrative record. Plaintiff maintains that the administrative record already contains information confirming the facts set out in her affidavit. Plaintiff points out that the record also contains a letter which has the same allegations that are in the affidavit.*fn13
The administrative record contains entries showing that Hartford received additional information from Plaintiff's employer on March 24, 2005. These entries also indicate that Plaintiff's employer asked Hartford to review the new information to determine if it "substantiated disability earlier."*fn14 Hartford complied and reviewed Plaintiff's file on March 29, 2005.*fn15
There are also entries showing two phone calls by Plaintiff in May and June 2005 to John Wentworth ("Wentworth"), a claim's examiner for Hartford. According to the record, Plaintiff asked Wentworth for a copy of her file, and, in a ...