                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                    September 22, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-30229
                          Summary Calendar


                           KEVIN CHAUVIN,

                                                Plaintiff-Appellant,

                                versus

               UNUM LIFE INSURANCE COMPANY OF AMERICA,

                                                 Defendant-Appellee.


            Appeal from the United States District Court
                for the Eastern District of Louisiana
                            (01-CV-157-C)


Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Kevin Chauvin appeals the summary judgment awarded UNUM Life

Insurance   Company   against   his   claim   that   UNUM,    as    plan

administrator, abused its discretion in denying his claim for

partial disability benefits.    Chauvin contends UNUM failed in its

duty to disclose steps necessary to preserve his right to obtain

those benefits under the Employee Retirement Income Security Act

(“ERISA”), 29 U.S.C. § 1001, et seq.




     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     UNUM issued a group long term disability policy pursuant to a

group insurance trust in which Venture Transport, Inc. (Venture),

was a participating employer.       As a Venture employee, Chauvin was

provided a booklet describing plan benefits available to him.

     Chauvin alleged he became disabled on the job on 14 October

1996. UNUM approved his claim for long term disability benefits on

3 June 1997.    Chauvin’s policy’s definition of total disability

required that Chauvin be unable to perform each of the material

duties of any gainful occupation for which he is reasonably fitted

by training, education, or experience.

     After providing benefits to Chauvin for 24 months, UNUM

conducted several evaluations, including a medical examination, on

Chauvin.   As a result of these evaluations, it was determined that

Chauvin could perform a number of jobs.       Therefore, on 17 December

1999,   UNUM   notified   Chauvin    that   his   benefits   were   being

terminated.    The notification letter explained why benefits were

being terminated;     identified    seven   occupations   UNUM   concluded

Chauvin could perform, as well as work skills Chauvin possessed;

and advised Chauvin that, within 90 days, he could submit a written

request to UNUM’s appeal department to have the decision reviewed.

Following the appeal process, the benefits-termination was upheld.

     Chauvin filed this action in state court; UNUM removed it to

the district court.    The district court granted in part and denied

in part UNUM’s summary judgment motion, and denied Chauvin’s

summary judgment motion.     The court concluded that, although the

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plan   administrator         did    not    abuse    his     discretion     in   denying

Chauvin’s claim for disability benefits, he failed to consider

whether     Chauvin     qualified          for   partial     disability      benefits.

Therefore, the district court retained jurisdiction pending the

plan administrator’s decision.

       The plan administrator denied Chauvin’s claim for partial

disability       benefits.         After    permitting      Chauvin   to    amend    his

complaint,       the   district      court       considered    UNUM’s      motion    for

reconsideration of the district court’s earlier denial of the

summary judgment motion.

       In   so    doing,     the     district       court     concluded     the     plan

administrator did not abuse its discretion in determining Chauvin

did not meet the plan definition of “partially disabled”, and was

therefore not entitled to benefits. No authority need be cited for

our reviewing de novo a summary judgment and for its being proper

if there are no material fact issues and the movant is entitled to

judgment as a matter of law.

       Chauvin contends: the summary plan description (SPD) did not

adequately inform him of his obligations in order to obtain partial

disability benefits; the plan administrator did not adequately

respond to his request for information concerning his eligibility

for them; and the administrator failed in its duty to fully

disclose the steps necessary for him to preserve his right to

obtain them.



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     Pursuant      to   ERISA,   a    SPD    must   be   furnished   to      plan

beneficiaries; it must “be written in a manner calculated to be

understood    by    the    average    plan    participant,     and   shall     be

sufficiently accurate and comprehensive to reasonably apprise such

participants and beneficiaries of their rights and obligations

under the    plan”.        29 U.S.C. § 1022.         Clear and unambiguous

statements in the SPD for an ERISA plan are binding.                 McCall v.

Burlington Northern/Santa Fe. Co., 237 F.3d 506, 512 (5th Cir.

2000).

     The    SPD,   which    Chauvin   received,     includes   the   following

definition of partial disability:

            “Partial disability” and “partially disabled”
            mean that because of injury or sickness you,
            while unable to perform all the material
            duties of his regular occupation on a full-
            time basis, are:

            1.   performing at least one of the material
            duties of your regular occupation or another
            occupation on a part-time or full-time basis;
            and

            2.    currently earning at least 20% less per
            month    than  your   indexed  pre-disability
            earnings due to that same injury or sickness.

The SPD also provides that, to be eligible for partial disability

benefits, an employee must submit proof of partial disability

within 31 days of the end of a period during which he received

disability benefits.       Chauvin does not dispute having received the

SPD; instead, he contends he did not understand he would be

required to work to receive current earnings.                  The pertinent

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language of the SPD is clear; as quoted above, it states that, to

be partially disabled, a beneficiary must be currently earning

money performing at least one of his regular occupation material

duties.     UNUM fulfilled its obligation to inform Chauvin of his

obligations       under    the   plan    regarding       entitlement    to    partial

disability benefits.

       It   is   undisputed      that    Chauvin       was   not   working    and    was

receiving disability benefits until being notified on 17 December

1999    that     those    benefits   were      being    terminated;     it    is    also

undisputed that he was not employed within 31 days of 17 December,

as required by the plan for eligibility for partial disability

benefits.        Even so, Chauvin contends UNUM failed to adequately

respond to his request for information concerning eligibility for

disability benefits.         Despite this contention, the administrative

record includes no evidence that Chauvin made any inquiry after his

total    disability       benefits      were   terminated       and   prior   to     the

expiration of the 31 days thereafter. In short, the administrative

record does not show that a timely request was made.

       Finally, Chauvin contends UNUM breached its fiduciary duty

under 29 U.S.C. § 1104 to provide complete and correct material

information about the plan to Chauvin.                  This contention is raised

for the first time on appeal.            It is well-established that we will

not review issues raised in that fashion.                    See, e.g., Priester v.

Lowndes County, 354 F.3d 414, 424 (5th Cir. 2004).


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    AFFIRMED




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