           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 26, 2008

                                          No. 07-10043                Charles R. Fulbruge III
                                        Summary Calendar                      Clerk


TIMOTHY R. COLLINSWORTH,

                                                  Plaintiff–Appellant,
v.

AIG LIFE INSURANCE COMPANY,

                                                  Defendant–Appellee.



                      Appeal from the United States District Court
                           for the Northern District of Texas
                                    Dallas Division
                                USDC No. 3:04-CV-1397


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Collinsworth appeals the district court’s denial of attorney’s fees in this
ERISA1 case. We affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
           29 U.S.C. §§ 1001, et seq.
                                  No. 07-10043

                                        I
      Timothy Collinsworth enrolled in a long-term disability group insurance
plan insured by AIG Life Insurance Company and provided by his employer,
Tyco International (US). He had two policies under the plan that provided a
total benefit of $180,000. In accordance with 29 U.S.C. § 1022, Tyco gave
Collinsworth a summary plan description (SPD) that described the policies.
      Collinsworth fell on his left side in 2001, after the policies had become
effective. He suffered a bruise and excruciating pain. The next day, he sought
emergency medical treatment from Dr. Wong. Dr. Wong diagnosed Collinsworth
with a contusion to his left elbow and cleared Collinsworth to return to work
with no restrictions. Collinsworth also saw his regular physician, Dr. Goyal.
Collinsworth was placed on short term disability after he continued to
experience severe pain.
      Collinsworth subsequently applied for benefits under both policies. He
submitted a proof of loss form, which described his condition after the fall. Along
with the form, Collinsworth turned in notes from Dr. Goyal, which described
Collinsworth’s pain and concluded that Collinsworth was “totally disabled.”
When AIG reviewed the claim and Collinsworth’s medical history, it discovered
that Collinsworth had experienced a left-hemispheric stroke six years earlier.
As a result of the stroke, the left side of Collinsworth’s body was partially
paralyzed, and Collinsworth had trouble sitting, standing, and walking. After
the stroke, he also suffered from central pain syndrome and depression.
      After learning of the stoke and its complications, AIG asked Dr. Seals (a
medical doctor) and Dr. Horwath (a psychiatrist) to examine Collinsworth. Dr.
Seals concluded that the fall caused no detectable trauma to Collinsworth’s
nervous system, and that any neurological deficit was “linked to his stroke.”
Seals also reported that Collinsworth was able to perform all activities for which
he was qualified. Dr. Howarth noted that Collinsworth had been counseled for


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                                          No. 07-10043

depression several months prior to the fall. Based on Collinsworth’s history of
recurrent major depression, Howarth concluded that Collinsworth was not
totally and permanently disabled as a result of the fall.                         AIG denied
Collinsworth’s claim based partially on these reports; it interpreted the plan to
contain an exclusion for preexisting conditions. Collinsworth appealed the
denial to AIG’s ERISA Appeals Committee, which affirmed the decision.
         Collinsworth then filed this lawsuit in the Northern District of Texas. The
parties filed cross motions for summary judgment. The court denied AIG’s
motion and granted Collinsworth’s motion in part. It disagreed with AIG’s
interpretation of the plan, concluding that the plan does not contain a
preexisting condition exclusion. It also concluded that AIG’s factual findings
were insufficient to support its denial under this interpretation. The court
therefore remanded for AIG to reconsider its decision in light of the new plan
interpretation. The court denied Collinsworth’s request for attorney’s fees, but
it also stated that Collinsworth could renew the request after remand.
         On remand, AIG reopened its investigation and again denied
Collinsworth’s claim. Collinsworth appealed the second denial to the appeals
committee. This time, the committee voted to reverse the denial and to pay the
claim in full.
         Collinsworth then moved the district court to award attorney’s fees,
interest, and court costs. The district court awarded interest and court costs, but
it denied the request for attorney’s fees. Collinsworth appeals this denial.
         We review the district court’s denial of attorney’s fees for abuse of
discretion.2 In addition, we defer to the district court’s underlying factual
findings unless they are clearly erroneous.3


         2
             Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000).
         3
             FED. R. CIV. P. 52(a); Brock v. El Paso Natural Gas Co., 826 F.2d 369, 372 (5th Cir.
1987).

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                                     No. 07-10043

                                           II
                                            A
      ERISA gives the district court “discretion [to] allow a reasonable attorney’s
fee . . . to either party.”4 In Bowen, we enumerated five factors that district
courts should consider in deciding whether to award attorney’s fees under
ERISA:
      (1) the degree of the opposing parties’ culpability or bad faith; (2) the
      ability of the opposing parties to satisfy an award of attorneys’ fees;
      (3) whether an award of attorneys’ fees against the opposing parties
      would deter other persons acting under similar circumstances;
      (4) whether the parties requesting attorneys’ fees sought to benefit
      all participants and beneficiaries of an ERISA plan or to resolve a
      significant legal question regarding ERISA itself; and (5) the
      relative merits of the parties’ positions.5

We have described these factors as “guidelines” and explained that “[n]o one of
these factors is necessarily decisive, and some may not be apropos in a given
case.”6
      Collinsworth challenges the district court’s application of these factors in
several ways. His main contention is that the court inadequately explained its
denial. In its initial order remanding to AIG, the court cited the correct Bowen
standard. It then stated, “Having considered those factors, the Court determines
not to award attorneys’ fees to Plaintiff.” After remand, the district court again
denied attorney’s fees. This time, it listed the Bowen factors and made specific
factual findings under each factor. Collinsworth claims the district court’s
analysis constituted abuse of discretion.



      4
          29 U.S.C. § 1132(g).
      5
        Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980) (footnote
omitted).
      6
          Id.

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                                   No. 07-10043

      Although the district court did not explicitly cite the findings that
supported its first denial of attorney’s fees, it did recite the Bowen factors and
state that it considered them.      Moreover, the court’s implicit findings are
sufficient to support its decision. Most importantly, nothing in the court’s
opinion suggests that AIG acted in bad faith. The court stated that several of
the defendant’s factual findings supported its denial of benefits, especially under
the defendant’s interpretation of the plan. Similarly, it later concluded that
some evidence supported the defendant’s denial. The court also found that the
defendant did not make its original decision with undue delay.
      The court similarly indicated that the defendant’s construction of the SPD
was in good faith. First, it noted that “a reasonable plan participant could not
read the summary plan description and know with any degree of certainty
whether his accident coverage was restricted by specific previous conditions.”
It stated that this “ambiguity . . . must be resolved in the policyholder’s favor.”
It made a similar determination about the meaning of the word “result” within
the SPD. The SPD requires that a disability must come about “as a result” of a
covered accident but does not state whether the accident must be a “direct and
independent cause” of the disability. The court stated that the “‘as a result’
language is ambiguous” and similarly construed it in the policyholder’s favor.
Finally, the SPD excludes losses “caused by or resulting from” certain things.
The court determined that “‘caused by or resulting from’ is ambiguous” and
construed that phrase in Collinsworth’s favor.        Thus, although the court
ultimately disagreed with AIG’s construction of the plan, it did not indicate that
AIG’s interpretation was done in bad faith; to the contrary, the court’s discussion
supports the opposite inference.
      The district court’s memorandum also indicates that, although
Collinsworth ultimately prevailed, AIG’s position nevertheless had merit. The
determinations noted above show that AIG’s interpretation of the plan was


                                        5
                                       No. 07-10043

plausible, and that AIG produced evidence to support its decision. Moreover, the
court decided to remand to AIG, which it likely would not have done if it found
AIG’s position meritless.
       Furthermore, the Bowen analysis in the district court’s second opinion
relieves any concerns we might have about the first opinion’s analysis. After
remand, the court explicitly found that (1) AIG “did not act in bad faith or
otherwise act culpably”; (2) “an award of attorney’s fees in this case would [not]
deter improper conduct of [AIG] or others”; (3) Collinsworth did not seek “to
benefit others,” and the case did not “resolve[] a significant legal question under
ERISA”; and (4) although Collinsworth ultimately prevailed, AIG’s factual
findings did not constitute an abuse of discretion. Assuming these findings are
not clearly erroneous—an assumption we test momentarily—the district court’s
Bowen analysis did not constitute an abuse of discretion.
                                             B
       Collinsworth also argues, however, that the district court’s findings are
clearly erroneous. First, he contends that the district court committed clear
error in finding a lack of bad faith.7 He specifically claims that bad faith is
evident from AIG’s reliance on definitions in the policy rather than definitions
in the SPD, and its claim that Collinsworth’s position was a “red herring.” While
this evidence arguably tends to show that AIG acted in bad faith, other
evidence—cited above—tends to show good faith. Given that the totality of the
evidence does not unequivocally show bad faith, the district court’s finding is not
clearly erroneous.
       Collinsworth also claims clear error in the district court’s finding that an
award would have little deterrence value. He claims that a fee award would
deter other administrators from “hiding behind a policy requirement in denying


       7
         Although Collinsworth complains that the court “abused its discretion” in making this
finding, we review the district court’s factual findings for clear error.

                                              6
                                   No. 07-10043

the claims of unsuspecting employees.” But this explanation assumes that AIG
was acting in bad faith, rather than acting upon a reasonable (but legally
incorrect) plan interpretation. An award of attorney’s fees seems unlikely to
deter administrators who make a good faith, but legally incorrect, plan
interpretation. Thus, the district court’s finding is not clearly wrong.
      Collinsworth also assails the district court’s finding that this suit did not
seek to benefit all plan beneficiaries or to resolve a significant legal question.
According to Collinsworth, the “suit did seek to benefit other beneficiaries of an
ERISA plan, since the plan in question was an ERISA sponsored employer
benefit plan.” According to this logic, however, virtually every ERISA lawsuit
would satisfy this factor. This case does not appear to provide any special
benefit to other beneficiaries, and the district court’s finding to that effect is not
clearly erroneous.
      Finally, Collinsworth argues that the merits of the case were strongly on
his side. As noted above, although Collinsworth’s position ultimately prevailed,
AIG’s position nevertheless had merit. The district court’s finding on this factor
is not clearly wrong.
      Because the district court’s factual findings are not clearly erroneous and
adequately support its decision, we conclude that the court did not abuse its
discretion.
                                          C
      Collinsworth also argues that the district court should have awarded
attorney’s fees because Collinsworth “believes that where there is not a near
equivalence of merit, the party who presents the side with the greater merit is
entitled to a favorable exercise of discretion, particularly if the other factors
weigh in the party’s favor.” We reject this argument for two reasons. First,
Collinsworth’s “rule” is not the law. Collinsworth presents no case with this
holding. The law of the Fifth Circuit is that the district court has discretion to


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                                       No. 07-10043

award attorney’s fees and should take guidance from the five factors set forth in
Bowen.8 Second, even if Collinsworth’s rule were the law of this Circuit, the
district court did not make the finding it requires—that “there is not a near
equivalence of merit” in the parties’ positions, and that “the other factors weigh
in” his favor.
                                              D
      Finally, Collinsworth claims the district court erred in two related ways:
first, by not analyzing whether AIG abused its discretion in construing the plan’s
terms or denying the claim; and second, by stating in the second opinion that it
had previously concluded that AIG did not abuse its discretion. The first
argument is unavailing. In an ERISA case, the district court reviews the
administrator’s interpretation of plan terms or denial of benefits for abuse of
discretion only if the plan gives the administrator discretion to do so.9 This court
“employ[s] a two-part test when applying the abuse of discretion standard.”10
First, we “identify the legally correct interpretation of the plan.”11                  If the
administrator’s interpretation is legally incorrect, then under the second step
“we determine whether the administrator’s decision constitutes an abuse of
discretion.”12 If, however, the plan does not provide such discretion, the court
reviews the administrator’s determinations de novo.13 Regardless of whether the




      8
          Id.
      9
          Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
      10
         Worthy v. New Orleans S.S. Assoc./Int’l Longshoremen’s Assoc., AFL–CIO Pension
Plan, 342 F.3d 422, 428 (5th Cir. 2003).
      11
           Id. (citing Wildbur v. ARCO Chem. Co., 974 F.2d 631, 637 (5th Cir. 1992)).
      12
           Id.
      13
           Wildbur, 974 F.2d at 636.

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                                             No. 07-10043

plan gives the administrator discretion, the court reviews the administrator’s
factual findings for abuse of discretion.14
         Collinsworth complains that after the district court found AIG’s
interpretation legally incorrect, it was “obligated” to determine whether AIG
abused its discretion in construing plan terms or denying benefits. The district
court’s approach was not erroneous. The court concluded that the plan does not
give the administrator discretion,15 and it therefore reviewed the administrator’s
decisions de novo. Because the plan gave AIG no discretion to construe plan
terms or to deny benefits, the district court did not err by failing to determine
whether AIG abused its discretion in these areas. Furthermore, even if the
district court had reviewed for abuse of discretion and found that AIG abused its
discretion, that finding would not require the district court to award attorney’s
fees. We have held that “a district court may award attorneys’ fees upon finding
an abuse of discretion.”16 But the decision whether to award attorney’s fees is
still in the district court’s discretion, subject to its analysis of the Bowen
factors.17
         Collinsworth’s second argument is equally unavailing. As noted above, the
district court interpreted the plan de novo, and hence it had no opportunity to
conclude that AIG’s interpretation was an abuse of discretion. Regarding AIG’s
factual findings, the district court purported to conduct an abuse of discretion
review, and it did not conclude that AIG abused its discretion. Thus, even if the




         14
              Pierre v. Conn. Gen. Life Ins. Co/Life Ins. Co. of N. Am., 932 F.2d 1552, 1553 (5th Cir.
1991).
         15
              Neither party challenges this conclusion.
         16
              Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 348 (5th Cir. 2002) (emphasis
added).
         17
              Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980).

                                                    9
                                    No. 07-10043

district court did not explicitly find no abuse of discretion, its statement in the
second opinion accurately reflects the substance of the earlier opinion.
                                *        *         *
      We AFFIRM the district court’s denial of attorney’s fees.




                                        10
