UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RAYMOND A. UNDERWOOD; LINDA
SUE UNDERWOOD,
Plaintiffs-Appellants,

v.

FLUOR DANIEL, INCORPORATED; FLUOR
CORPORATION GROUP HEALTH PLAN;
FLUOR CORPORATION; FLUOR
CORPORATION GROUP HEALTH PLAN,
Plan Administrator,                                                 No. 95-3036
Defendants-Appellees,

and

FLUOR DANIEL, INCORPORATED, Group
Health Plan; FLUOR DANIEL,
INCORPORATED, Group Health Plan
Claims Review Committee,
Individually and Collectively,
Defendants.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CA-95-42)

Argued: September 25, 1996

Decided: January 28, 1997

Before HALL and ERVIN, Circuit Judges, and HALLANAN,
United States District Judge for the Southern District of West
Virginia, sitting by designation.

_________________________________________________________________
Affirmed in part, reversed in part, and remanded with instructions by
unpublished per curiam opinion. Judge Hallanan wrote an opinion
concurring in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: Roy Franklin Harmon, III, HARMON LAW FIRM, P.A.,
Greenville, South Carolina, for Appellants. Kristofer Karl Strasser,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, L.L.P.,
Greenville, South Carolina, for Appellees. ON BRIEF: Julie M.
Bondura, HARMON LAW FIRM, P.A., Greenville, South Carolina;
T. Preston Reid, HOWARD, HOWARD, FRANCIS & REID, Green-
ville, South Carolina, for Appellants. Fred W. Suggs, Jr.,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, L.L.P.,
Greenville, South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Raymond A. Underwood and his wife Linda appeal the order of the
district court denying their motion, made pursuant to Fed. R. Civ. P.
59(e), to amend the court's entry of judgment on behalf of defendants
Fluor Corporation, Fluor Daniel, Inc., and the Fluor Corporation
Group Health Plan (hereinafter, collectively, "Fluor"), in the Under-
woods' action for benefits, penalties, and injunctive relief under the
Employee Retirement Income Security Act of 1974 (ERISA), 29
U.S.C. §§ 1001-1145.

Specifically, the Underwoods allege that Fluor wrongly refused to
pay health insurance benefits due Mrs. Underwood under the Plan,
and has failed to comply with the information and notice requirements

                    2
of ERISA and the COBRA1 amendments thereto. The Underwoods
contend that, as a result, Fluor has breached its fiduciary duties to
administer the Plan "solely in the interest of the participants and bene-
ficiaries," with "care, skill, prudence, and diligence," and "in accor-
dance with the documents and instruments governing the plan[.]" 29
U.S.C.A. 1104(a)(1) (West 1985 & Supp. 1996). Moreover, according
to the Underwoods, Fluor's non-compliance with the information and
notice requirements has rendered it liable for the statutory penalty of
up to $100 per day for each violation. See 29 U.S.C. § 1132(c)(1)
(West Supp. 1996).

Following a bench trial, the district court entered judgment for
Fluor on all of the Underwoods' claims, and it denied the Under-
woods' subsequent motion to alter or amend the judgment. We affirm
the judgment of the district court with respect to its denial of benefits
and injunctive relief, and with respect to its excusing Fluor from the
statutory penalty for not furnishing the Underwoods with requested
plan documents and other information.

We hold, however, that the district court abused its discretion by
not imposing the statutory penalty for Fluor's failure to provide Mrs.
Underwood with notice of her rights upon the impending termination
of the health insurance benefits to which she had been entitled under
the Plan. We therefore reverse that aspect of the judgment and remand
for the district court to impose the appropriate penalty.

I.

On June 29, 1992, Raymond Underwood was laid off from his
engineering job with Fluor Daniel, Inc., in Greenville, South Carolina.
Upon reporting for work that day, Mr. Underwood was escorted to the
personnel department and given a printed notice explaining that,
although he was being separated from his employment, he could elect
to continue his and/or his wife's health insurance under the compa-
ny's health benefits plan.2 Mr. Underwood decided to postpone his
_________________________________________________________________
1 Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C.
§§ 1161-68.
2 Fluor Daniel, Inc., is a subsidiary of Fluor Corporation, and both are
sponsors of the Fluor Corporation Group Health Plan. Fluor Corporation

                     3
decision. He testified that he took the notice home and put it in his
safe, never showing it to his wife.

Linda Underwood had been suffering from a chronic intestinal ail-
ment since the first of the year; indeed, she had been taken to the hos-
pital the very morning that her husband lost his job. She was released
the next day, however, and Mr. Underwood quickly found employ-
ment with Sandwell Engineering in Atlanta. His new job was sched-
uled to begin on August 24, 1992, within the 60-day election period
accorded him by the COBRA amendments. See note 2, supra. Mr.
Underwood testified that he understood that there was no danger of
any gap in his health insurance coverage; he also stated his belief that,
in the event that he needed health benefits prior to starting work with
Sandwell, he could simply elect to continue his coverage with Fluor
Daniel and pay the back premiums.

Mrs. Underwood's coverage, however, was another matter; she
would not be covered under Sandwell's insurance for any medical
expenses related to her preexisting intestinal condition. The Under-
woods testified that, as a result, they believed it necessary for her to
obtain a continuation of the coverage provided by Fluor.
_________________________________________________________________
is the Plan Administrator. As a participant in the Plan, Mr. Underwood
was entitled to hospitalization coverage and other insurance benefits;
Mrs. Underwood, as her husband's beneficiary under the Plan, see 29
U.S.C. § 1002(8), qualified for the same benefits. The Plan is self-
insured; claims against it are submitted to a third-party administrator for
processing and payment. The Plan then reimburses the claims adminis-
trator.

The notice provided to Mr. Underwood explained that, under the
COBRA amendments, he could, by paying the entire premium due, con-
tinue health coverage for himself, his wife, or both for up to 18 months
after his termination. See 29 U.S.C. § 1162(2). The notice quoted
monthly premiums based on whether one or two persons remained
insured; it clearly specified that the premiums were due at the beginning
of each month and that premium notices would not be mailed. The notice
also informed Mr. Underwood that premium payments would be consid-
ered timely if received within 30 days of the date due, and that he had
60 days to decide whether to continue coverage. See 29 U.S.C.
§§ 1162(2)(C), 1165(1).

                     4
Fluor Daniel maintains that, during the first week of July 1992, it
mailed a duplicate "COBRA notice" to Mr. Underwood, along with
an election form for him to sign and return in the event that he
decided to continue coverage. The Underwoods assert that they never
received this mailing.3 In any case, while out of town in early August,
Mr. Underwood telephoned his wife and instructed her to send a
check to Fluor Daniel to continue her coverage.

Mrs. Underwood testified that she phoned Fluor Daniel's benefits
department and was told by an unnamed employee to remit $679.36.
The amount quoted was exactly twice the monthly rate for joint cov-
erage, as listed on the notice handed to her husband upon his
termination.4 Mrs. Underwood mailed a check for the quoted amount,
dated August 10, 1992, to Fluor Daniel. On the check's memorandum
line, Mrs. Underwood wrote "July & Aug. 92." A few days thereafter,
Mr. Underwood submitted a completed election form to Fluor Daniel,
see note 3, supra, that effectively continued coverage for both him
and his wife.5
_________________________________________________________________
3 There is reason to believe the Underwoods' assertion. The signed
election form that Mr. Underwood eventually submitted was imprinted
with the Underwoods' old RFD address, which had been changed to a
street designation several years previously. Mr. Underwood testified that
he obtained this election form in person from Fluor Daniel's benefits
department in mid-August 1992.
4 Mrs. Underwood apparently did not effectively communicate any
desire on her part to continue coverage only for herself. Absent continua-
tion, the Underwoods' coverage would have expired on June 30, 1992.
Hence, upon remittance of the quoted amount, the couple's joint cover-
age was continued through August 31, 1992. In order to extend the cov-
erage beyond that date, the Underwoods would have had to pay
additional premiums no later than September 30, 1992. See note 2, supra.

5 Mr. Underwood's election of joint coverage, like his wife's remit-
tance of the joint premium, seems to contradict the couple's stated desire
to continue coverage for Mrs. Underwood only. If, perhaps, Mr. Under-
wood was confused, his confusion can easily be traced to the election
form itself, which was poorly conceived. The form quoted only the joint
premium rate, and it failed to list the entire range of available options;
its designer apparently did not contemplate that an employee might elect
to continue coverage only for a spouse or other dependent.

                    5
September came and went without any further payments by the
Underwoods to Fluor Daniel. Mrs. Underwood continued to require
medical assistance for her condition, undergoing outpatient proce-
dures in October and November. Her situation ultimately worsened,
requiring her to enter the hospital on January 2, 1993.

The following day, Mr. Underwood was told that there was a
"problem" certifying his wife's admission; he contacted Fluor Daniel,
which informed him that the Underwoods' insurance had been cancel-
led as of August 31, 1992, for non-payment of premiums. See note 4,
supra.6 By telephoning Fluor's headquarters in California, Mr. Under-
wood was able to get his wife's admission certified by the Plan's pre-
certification agent, and she received the surgery that she needed on
January 11. In the end, however, Fluor rebuffed the Underwoods'
repeated attempts to tender payment for back premiums, and it stead-
fastly refused to pay approximately $400,000 in medical expenses
stemming from Mrs. Underwood's hospitalization and surgery.

The Underwoods filed suit in the district court, seeking to impose
liability on Fluor for the costs of Mrs. Underwood's care. The com-
plaint accused Fluor of having violated specific provisions of ERISA
and its COBRA amendments by not giving the Underwoods sufficient
notice of their rights to continued health insurance coverage under the
Plan, and by refusing to provide Plan documents and other informa-
tion they had requested. It was further alleged that Fluor's failure to
comply with ERISA's notice and information requirements, along
with its denial of Mrs. Underwood's insurance claims, constituted
breaches of its fiduciary duties to the Underwoods.

The parties proceeded to trial before the district court, which, on
August 17, 1995, entered judgment for Fluor on all of the Under-
woods' claims. In so ruling, the court found that
_________________________________________________________________

6 Notwithstanding the supposed cessation of coverage, bills for the out-
patient procedures performed on Mrs. Underwood in October and
November 1992 were submitted to and paid by the third-party claims
administrator. Fluor has not sought reimbursement from the Underwoods
for these expenses.

                    6
          Mrs. Underwood knew she had a right to continued insur-
          ance coverage when her husband was terminated from Fluor
          Daniel. She knew that her husband elected COBRA cover-
          age for her and that the premium amount had to be paid. She
          also knew the premium amount due. She knew the period
          covered by the premium amount because she wrote on her
          check that it was for July and August of 1992. . . . It is not
          necessary to reach the plaintiffs' complaints regarding
          notice because they elected and received continued insur-
          ance coverage under COBRA. . . . Fluor Daniel terminated
          the plaintiffs' coverage because the plaintiffs did not pay
          their premiums.

From the court's subsequent denial of their motion to amend its judg-
ment, the Underwoods appeal.

II.

A.

The COBRA amendments require group health plan administrators
to notify "any qualified beneficiary" of a plan participant of his right
to temporarily continue his coverage upon the occurrence of certain
"qualifying events" (including termination of the participant's
employment) that would otherwise result in the beneficiary's loss of
coverage. 29 U.S.C.A. §§ 1163(2), 1166(a)(4)(A) (West Supp. 1996).
The participant's employer must inform the administrator of the qual-
ifying event within 30 days of its occurrence; the administrator then
has 14 more days to notify any beneficiaries and explain to them their
rights. See §§ 1166(a)(2), (c). The statute plainly identifies plan bene-
ficiaries as a discrete class entitled to certain rights apart from plan
participants; we are, therefore, compelled to conclude that a plan
administrator may not, merely by notifying participants of their rights,
simultaneously fulfill its notice obligations to beneficiaries.

B.

Teresa Futrell, Fluor Daniel's benefits supervisor, admitted at trial
that the company never individually notified Mrs. Underwood of her

                     7
rights under the COBRA amendments.7 The Underwoods seize upon
this admission, urging us to impose liability on Fluor under ERISA's
penalty provision, 29 U.S.C. § 1132(c), which states, in pertinent part:

          Any administrator . . . who fails to meet the requirements of
          paragraph [(a)](4) of section 1166 of this title . . . with
          respect to a participant or beneficiary . . . may in the court's
          discretion be personally liable to such participant or benefi-
          ciary in the amount of up to $100 a day from the date of
          such failure . . . , and the court may in its discretion order
          such other relief as it deems proper.

29 U.S.C.A. § 1132(c)(1) (West Supp. 1996). According to the
Underwoods, "proper" relief in this case would include having Fluor
pay for Mrs. Underwood's medical expenses.

In considering the Underwoods' argument, we find it hard to fault
the logic of the court below. At the outset, we cannot say that the dis-
trict court clearly erred in concluding that Mrs. Underwood knew the
amount of her monthly premium and when it was due: the check that
Mrs. Underwood mailed to Fluor Daniel was made out for the precise
amount of two months' premiums, and Mrs. Underwood had even
noted thereon the specific months for which the premiums had been
paid. Mrs. Underwood's actions were entirely consistent with those
of a plan beneficiary who was fully aware of her rights and responsi-
bilities under the COBRA amendments.8
_________________________________________________________________
7 In 1993, Fluor amended its practice of addressing its notice mailings
solely to Plan participants. Now, in cases involving married participants
with spouse beneficiaries, it still mails out a single notification letter
(apparently including a detailed question-and-answer pamphlet, enthusi-
astically entitled "Welcome to the Wonderful World of COBRA"), but
it addresses the letter to both spouses. Fluor assures us that its new proce-
dure comports with the statutory requirement. We express no opinion on
the matter.
8 We are aware that the evidence could be viewed as painting a very
different picture. We might imagine that Mrs. Underwood, in light of her
illness, was neither particularly willing nor fully able to take the initiative
in ensuring that her Plan benefits continued uninterrupted. It is conceiv-
able that Mrs. Underwood had never before paid for health insurance out

                    8
Under the district court's view of the evidence, Mrs. Underwood
was aware of every fact necessary for her to continue her coverage
under the Plan well beyond the time of her hospitalization and sur-
gery. The notice provided Plan participants, had she received it,
would have added nothing to her knowledge; indeed, we are con-
strained to point out that the Underwoods actually succeeded at the
outset in continuing their coverage.

We conclude -- as did the district court -- that Mrs. Underwood's
coverage lapsed solely because she and/or her husband simply
neglected to pay the required insurance premiums; the corollary to our
conclusion, of course, is that the Underwoods' coverage did not lapse
as the result of any act or omission of Fluor. Inasmuch as Fluor's fail-
ure to provide Mrs. Underwood with the required notice of her
COBRA rights did not cause the lapse in her coverage, it would be
inequitable to hold it liable for the consequences of that lapse. Like-
wise, to the extent Fluor's inaction may have also been a breach of
its fiduciary duty to Mrs. Underwood, the breach did not cause the
lapse in coverage, and, therefore, Fluor cannot be held responsible.

III.

A.

On the other hand, the happenstance that Mrs. Underwood knew of
her rights under the COBRA amendments did not absolve Fluor from
its obligation to notify her of them; "knowledge" is not the equivalent
of "notice," though the former may flow from the latter. Section
1132(c)(1), by its plain terms, accords the district court considerable
_________________________________________________________________
of her own pocket, and, as a result, she did not fathom the enormous cost
involved. She may well have, as she testified, simply filled out the check
-- including the memorandum line -- in unquestioning accordance with
the instructions of the benefits department, giving no thought to the
meaning of the words and numbers that she recorded.

The district court could have taken the above view, but it was not
required to. "Where there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous." Anderson
v. City of Bessemer City, 470 U.S. 564, 574 (1985) (citations omitted).

                    9
discretion to impose a penalty on any plan administrator that fails to
comply with the notice provisions of ERISA or the COBRA amend-
ments. Glocker v. W.R. Grace & Co., 974 F.2d 540, 544 (4th Cir.
1992).

This discretion, however, must necessarily be confined to a deter-
mination of whether any mitigating circumstances exist to excuse the
administrator's inaction. Where, as here, the violation is clear and
without excuse, a penalty should be imposed, regardless of whether
the plaintiff has been prejudiced. See Davis v. Featherstone, 97 F.3d
734, 738 (4th Cir. 1996) (prejudice not a prerequisite to imposing the
statutory penalty). Were it otherwise, the law would not be applied
with equal force to all, and justice would not be served.

B.

Moreover, we are of the opinion that the maximum penalty of $100
per day must, as a matter of law, be imposed in this case. Fluor Cor-
poration and its several subsidiaries employ a multitude of people;
Fluor's failure to comply with COBRA's notice-to beneficiaries pro-
vision from the amendments' enactment in 1986 until at least 1993,
see note 7, supra, has potentially caused substantial harm.

In addition, because "[t]he purpose of [§ 1132(c)(1)] is not to com-
pensate participants for injuries, but to punish noncompliance with
ERISA," Faircloth v. Lundy Packing Co., 91 F.3d 648, 659 (4th Cir.
1996), petition for cert. filed, 65 U.S.L.W. 3369 (U.S. Oct. 31, 1996)
(No. 96-702), the amount of the penalty must be sufficient to deter the
administrator from future misconduct. Although there is evidence to
suggest that Fluor is now attempting to comply with COBRA's notice
provisions, see note 7, supra, we are convinced that imposition of
anything less than the maximum statutory penalty would fail to suf-
fice as an adequate deterrent.

C.

Fluor Daniel was required to have informed the Plan Administrator
of Mr. Underwood's termination within 30 days of its occurrence.
Fluor Corporation (or Fluor Daniel, who appears to act as its parent

                    10
company's designee in such matters) then had 14 additional days in
which to provide Mrs. Underwood with notice of her rights. See Sec-
tion II-A, supra. Inasmuch as Mr. Underwood was terminated on June
29, 1992, Fluor's failure to comply with the applicable notice provi-
sion rendered it in violation of the law as of August 13, 1992. Indeed,
as far as we can tell, Fluor has not to this day provided Mrs. Under-
wood with the required notice.

Under South Carolina law, private parties must commence an
action for statutory penalties or forfeitures within one year of the trig-
gering event. See S.C. Code Ann. § 15-3-570 (Law. Co-op. 1977). If
we assume, for the sake of argument, that the discovery rule would
apply to such actions, Mrs. Underwood's notice claim accrued, at the
latest, when she discovered -- or reasonably should have discovered
-- that she was entitled by law to receive individual notice of her
rights from Fluor. Although the record does not disclose exactly when
Mrs. Underwood discovered the rights secured to her by the COBRA
amendments, Fluor waived any limitations defense by failing to assert
it in its answer to the complaint. Anderson v. Flexel, Inc., 47 F.3d
243, 247 (7th Cir. 1995).

We need not ascertain the precise accrual date of Mrs. Under-
wood's claim, however, in order to fashion the appropriate penalty.
Fluor's failure to provide the notice mandated by the COBRA amend-
ments has not resulted in any continuing harm to this particular plain-
tiff. Principles of fairness therefore dictate that we limit the extent of
Fluor's liability for the statutory penalty in this case to the limitations
period -- in other words, to $36,500. Were we to decide otherwise,
persons subjected to ERISA or COBRA violations, where those viola-
tions are unaccompanied by continuing harm, might be disinclined to
promptly pursue a remedy.

IV.

Finally, we address the Underwoods' contention that Fluor com-
mitted further violations of ERISA by not timely providing them with
certain Plan documents and other information that their lawyers had
requested. The materials were eventually supplied; the district court
found that they had been inadvertently misdirected to Mr. Under-
wood's counsel in an unrelated proceeding against Fluor Daniel, and,

                     11
therefore, that Fluor's technical violation of the statute was excusable.
Upon reviewing the record, we are satisfied that the district court's
finding was not clearly erroneous, and, therefore, that its denial of the
Underwoods' motion to alter or amend was not an abuse of its discre-
tion.

V.

The judgment of the district court, insofar as it denies the Under-
woods' claims for Plan benefits and for statutory penalties emanating
from Fluor's belated disclosure of Plan documents and information,
is affirmed. The judgment is reversed insofar as it denies statutory
penalties to Linda Underwood emanating from Fluor's failure to
notify her of her rights under the COBRA amendments. The case is
remanded to the district court with instructions to enter judgment for
Mrs. Underwood in the amount of $36,500. The assessment and cal-
culation of attorney fees, if appropriate, is left to the district court.

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS

HALLANAN, District Judge, concurring in part and dissenting in
part:

The notice requirements of 29 U.S.C. § 1166 state that a "group
health plan shall provide, at the time of commencement of coverage
under the plan, written notice to each covered employee and spouse
of the employee (if any) of the rights provided under this subsection
. . . ." 29 U.S.C. § 1166 (West Supp. 1996) (emphasis added). Section
1166 further reads that the administrator shall notify in the case of a
qualifying event pursuant to paragraphs 1,2,4 or 6 of section 1163 of
this title, any qualified beneficiary with respect to such event. 29
U.S.C. § 1166(a)(4)(A) (West Supp. 1996). These qualifying events
include the termination of such employee by reasons other than
employee's gross misconduct. 29 U.S.C. § 1163(2) (West Supp.
1996). Accordingly, each qualified beneficiary is entitled to "written
notice" of their rights under COBRA upon commencement of a quali-
fying event.

                     12
Under the facts of the present case, Fluor freely admits that it was
not their policy to send "written notice" to qualified beneficiaries at
the time of Mr. Underwood's termination of employment.* Conse-
quently, Fluor became subject to non-compliance penalties for failure
to follow the plain and unambiguous language of the statute. 29
U.S.C. § 1132(c)(1) (West Supp. 1996). Nevertheless, the district
court, in its discretion, denied relief. The district court reasoned that
Mrs. Underwood, the beneficiary under the policy, had adequate
notice of her rights and obligations in spite of Fluor's failure to pro-
vide her with "written notice."

The majority opinion correctly holds that such a ruling was an
abuse of discretion and properly reverses the district court's denial of
non-compliance penalties. With regard to that portion of the majority
opinion, I agree. I, however, cannot concur with the majority's affir-
mation of the district court's denial of other equitable relief. I believe
that this court's affirmation of the district court, in this regard, would
implicitly and incorrectly allow "constructive notice" to serve as an
adequate alternative to the "written notice" requirement of the statute.
My rationale for such a view is twofold.

By adopting the rationale of the majority opinion, and thereby
allowing "constructive notice" to serve as an adequate alternative to
a "written notice" requirement, this court will be circumventing the
plain language of the statute. Consequently, an insurance provider
will now be able to satisfy the requirements of the statute by either
providing "written notice" to the beneficiary or by arguing, as in the
present case, that the beneficiary had adequate notice of the rights and
obligations under the policy. Such circumstances show that the major-
ity opinion has implicitly added language to the statute. If Congress
intends for "constructive notice" to serve as an adequate alternative
for the "written notice" requirement, then let it be the entity to say so.

Secondly, the majority's holding creates an avenue for increased
litigation in the district courts. By allowing "constructive notice" to
serve as an adequate alternative to the statutory requirements, it may
become a financially sound policy to not follow the"written notice"
_________________________________________________________________
*Mr. Underwood was terminated for reasons other than gross miscon-
duct.

                     13
requirements of the statute and later litigate a"constructive notice"
issue.

In the present case, Fluor would be liable for Mrs. Underwood's
past due medical expenses if it were to award Mrs. Underwood cover-
age under the policy. However, if Fluor can persuade this court to
adopt a "constructive notice" as an adequate alternative to the "written
notice" requirement, it would only be subject to a fine which, argu-
ably, would only be a small percentage of full coverage under the pol-
icy. Therefore, I believe that strict adherence to the statutory
guidelines is warranted in order to avoid judicial legislating and
increased litigation. Thus, in addition to reversing the district court's
denial of non-compliance penalties, I would also reverse the district
court's denial of other equitable relief and award Mrs. Underwood
full coverage under the policy.

I respectfully dissent to the denial by this court of other equitable
relief and would award full coverage under the policy.

                     14
