PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HEALTHSOUTH REHABILITATION
HOSPITAL,
Plaintiff-Appellant,

v.

AMERICAN NATIONAL RED CROSS,
d/b/a American Red Cross South
Carolina Blood Services Region,
Defendant-Appellee,
                                                                     No. 95-2645
and

AETNA INSURANCE COMPANY OF
AMERICA; ALBERTA SHAW; DERRICK
WAGNER, individually and as Parents
and Natural Guardians of Eric
Shaw, a Minor under the age of
Eighteen (18) Years,
Defendants.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CA-94-3022-22)

Argued: September 27, 1996

Decided: December 3, 1996

Before ERVIN and HAMILTON, Circuit Judges, and SPENCER,
United States District Judge for the Eastern District of Virginia,
sitting by designation.

_________________________________________________________________
Affirmed by published opinion. Judge Hamilton wrote the opinion, in
which Judge Ervin and Judge Spencer joined.

_________________________________________________________________

COUNSEL

ARGUED: Annette Roney Drachman, LADDAGA, CROUT &
DRACHMAN, P.A., Charleston, South Carolina, for Appellant. Dan-
iel J. Westbrook, NELSON, MULLINS, RILEY & SCARBOR-
OUGH, L.L.P., Columbia, South Carolina, for Appellee. ON BRIEF:
Linda C. Garrett, LADDAGA, CROUT & DRACHMAN, P.A.,
Charleston, South Carolina, for Appellant. Alice V. Harris, NELSON,
MULLINS, RILEY & SCARBOROUGH, L.L.P., Columbia, South
Carolina, for Appellee.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

This is a suit for damages filed by HealthSouth Rehabilitation Hos-
pital (HealthSouth) pursuant to the Employment Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C.A. §§ 1001-1461 (West
Supp. 1995). The sole remaining defendant in this case is the Ameri-
can National Red Cross, South Carolina Blood Services Region (Red
Cross). HealthSouth's claims against the other defendants have either
been settled or resolved. The district court granted summary judgment
to Red Cross, and we now affirm.

I.

Red Cross maintains "For Your Benefit," a self-insured ERISA
welfare plan (Plan) for its employees. Red Cross is the plan adminis-
trator, and Aetna Life Insurance Company (Aetna) provides adminis-
trative and ministerial services to Red Cross pursuant to a contract.
According to that contract, Aetna had the authority to make determi-
nations on behalf of Red Cross with respect to benefit payments under
the Plan and to pay out those benefits, subject to Red Cross's reserved
right to modify any such determinations. Aetna had no contractual

                    2
authority to modify the Plan by declaring coverage for non-covered
procedures, nor to bestow beneficiary status on non-beneficiaries.

Derrick Wagner (Wagner) is a Red Cross employee and the natural
father of Eric Shaw. Red Cross provides all employees with a sum-
mary Plan description, and according to practice, one was distributed
to Wagner. That summary explains that an employee may enroll him-
self as a Plan participant and his spouse and dependent children as
Plan beneficiaries. In June 1989, Wagner completed a Plan enroll-
ment form in which he elected to obtain medical coverage for himself
only. At first, Wagner checked the box "yes" to indicate coverage
election for dependent children but then marked through the "yes"
box and checked "no" and initialed the change. No premium pay-
ments for Eric Shaw's coverage under the Plan were ever made by
Wagner or received by the Red Cross. Accordingly, Eric Shaw never
satisfied the Plan definition of "beneficiary."

On January 4, 1994, Alberta Shaw, Eric Shaw's mother, took Eric
Shaw to HealthSouth, in Florence, South Carolina, for rehabilitation
therapy. Alberta Shaw represented to HealthSouth that Eric was cov-
ered by Wagner's Red Cross Plan and signed a document assigning
the right to all benefits payable from any and all insurance policies
over to HealthSouth. Alberta Shaw also presented HealthSouth with
an insurance card which advised health care providers to contact
Aetna to certify hospital admissions or verify coverage. That card also
states that it does not guarantee coverage.

Before HealthSouth admitted Eric, the hospital's Admissions Coor-
dinator called an Aetna representative to verify coverage. That Aetna
representative erroneously informed the Admissions Coordinator that
Eric Shaw was a covered beneficiary under the Plan with no deduct-
ible and one hundred percent coverage for approved charges. A "con-
firmation fax" was also sent to Aetna by HealthSouth on January 4,
1994, but no response was received by HealthSouth to the confirma-
tion fax until February 15, 1994.

Based on Aetna's oral assurances, Eric Shaw was admitted at
HealthSouth and underwent treatment for several weeks. Throughout
Eric's stay at the hospital, Aetna was called on a weekly basis to
obtain pre-certification for additional days of treatment. That pre-

                    3
certification was always orally given. However, on February 15,
1994, an Aetna employee contacted HealthSouth and stated that the
earlier oral confirmation of beneficiary status was in error. Aetna also
informed HealthSouth for the first time that Eric Shaw was not a ben-
eficiary under the Plan. HealthSouth discharged Eric Shaw on Febru-
ary 17, 1994, after he had incurred $82,967 in expenses. The hospital
submitted that bill to Aetna, but Red Cross declined to pay because
Wagner had never elected to secure coverage for Eric.

HealthSouth brought an action against Red Cross, Aetna, Derrick
Wagner, and Alberta Shaw, seeking to recoup Eric Shaw's hospital
bills. The hospital alleged two claims against Red Cross in its
amended complaint. First, the hospital alleged that Aetna acted as Red
Cross's designated agent when Aetna orally confirmed Eric Shaw's
coverage under Wagner's health insurance plan with Red Cross.
Accordingly, HealthSouth asserted that Aetna's "interpretation" modi-
fied the Plan and Red Cross was bound by that modification. Health-
South further maintained that because of the modification, Eric Shaw
became a beneficiary and Red Cross was liable for Eric Shaw's hospi-
tal costs of $82,967. Second, HealthSouth alleged that it had become
a valid assignee of any rights Eric Shaw had under the Plan and
because Red Cross refused to pay the benefits allegedly owed to Eric
as a now "confirmed" beneficiary of the Plan, Red Cross had
breached the fiduciary duties it owed to HealthSouth as assignee. 29
U.S.C.A. § 1104(a)(1).

Red Cross filed a motion for summary judgment, claiming that
HealthSouth did not have standing to bring the suit because Eric
Shaw was not a beneficiary or an employee of a qualifying ERISA
plan. 29 U.S.C.A. § 1132(a). HealthSouth opposed summary judg-
ment and in its memorandum in opposition, indicated that if the dis-
trict court was inclined to grant summary judgment to Red Cross,
HealthSouth requested leave to amend its complaint to add an estop-
pel claim. HealthSouth also objected to the discovery restrictions
imposed on it by the district court.

The district court granted summary judgment to Red Cross and in
so doing rejected all of HealthSouth's claims, including the attempt
to amend its complaint. HealthSouth timely brought this appeal ques-
tioning the district court's grant of summary judgment on its modifi-

                    4
cation claims, the district court's discovery ruling, and the district
court's refusal to entertain its proposed amendment to the complaint
to add a promissory estoppel theory of recovery.

II.

Whether Red Cross was entitled to summary judgment is a matter
of law which we review de novo. Higgins v. E.I. DuPont de Nemours
& Co., 863 F.2d 1162, 1167 (4th Cir. 1988). Granting summary judg-
ment as a matter of law is appropriate when the pleadings, deposi-
tions, affidavits, and other documents in the record leave no issue of
any material fact which needs to be passed on by a jury. Fed. R. Civ.
P. 56(c). Accordingly, the moving party must negate any material
issue of fact and prove its entitlement to judgment on the relevant
legal principles. See Celotex Corp. v. Catrett , 477 U.S. 317, 323
(1986). In determining whether a genuine issue has been raised, the
court must construe all inferences and ambiguities in favor of the non-
moving party. United States v. Diebold, 369 U.S. 654, 655 (1962).

III.

HealthSouth contends that the district court erred when it con-
cluded that HealthSouth had no standing to bring its ERISA claims.
We disagree.

In order to establish its right to derivative standing because of
Alberta Shaw and Eric Shaw's assignment of rights, HealthSouth
would have to show that Eric Shaw was somehow "made" a benefi-
ciary by Aetna's oral assurances that Eric Shaw's hospital expenses
would be covered. Other than the Secretary or a fiduciary, an ERISA
action may be brought only by a "participant" or a beneficiary to an
ERISA plan. 29 U.S.C.A. § 1132(a) (West 1994). ERISA defines
"participant" as "any employee or former employee of an employer
. . . who is or may become eligible to receive a benefit of any type
from an employee benefit plan . . . or whose beneficiaries may be eli-
gible to receive any such benefit." 29 U.S.C.A.§ 1002(7). Therefore,
a person who is neither a participant nor a beneficiary lacks standing
to bring an ERISA action against a fiduciary or plan administrator.
See Stanton v. Gulf Oil Corp., 792 F.2d 432, 434-35 (4th Cir. 1986);

                    5
see also Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272,
1277-78 (6th Cir. 1991), cert. denied, 505 U.S. 1233 (1992).

HealthSouth maintains that because of Aetna's agreement with Red
Cross, Aetna possessed either actual or apparent authority to confer
beneficiary status on Eric Shaw. The district court correctly con-
cluded, however, that any discretionary authority over administration
of the Plan rested solely with Red Cross. See 29 C.F.R. § 2509.75-8
(1994); see also Haidle v. Chippenham Hosp., Inc., 855 F. Supp. 127,
131-32 (E.D. Va. 1994); Baker Hosp. v. Aetna Life Ins. & Casualty
Co., No. 91-2004, 1991 WL 179113 (unpublished) (4th Cir. October
25, 1991).1 In order to have the authority to amend or alter an ERISA
plan, Aetna would have to be a fiduciary and thus, be cloaked with
discretionary control respecting management of the Plan, including
the authority to dispose of Plan assets. 29 U.S.C.§ 1002(21)(A).
Given Aetna's limited role in processing claims under the Plan and
reading a computer screen to determine who is and who is not cov-
ered, it is clear that Aetna is not a fiduciary under the Plan. See Baxter
v. C.A. Muer Corp., 941 F.2d 451 (6th Cir. 1991) (a claims processor
that only had the power to pay out benefits according to the terms of
the established plan was not an ERISA fiduciary); Baker v. Big Star
Div. of the Grand Union Co., 893 F.2d 288, 290 (11th Cir. 1989)
("An insurance company does not become an ERISA`fiduciary' sim-
ply by performing administrative functions and claims processing
within a framework of rules established by an employer."); Haidle,
_________________________________________________________________
1 Although the opinion in Baker Hospital is unpublished and does not
constitute precedential authority pursuant to Local Rule 36(c), we find its
reasoning persuasive. In Baker Hospital, a hospital called Global Asso-
ciates, Inc. (Global), the plaintiff's employer, to verify coverage for Sally
Reese Warren, as directed on the Aetna insurance benefit card. Thus,
Global was performing the same sort of administrative duties for the
Aetna insured policy in that case, as Aetna performs for the Plan at issue
before us. Id. at *1-*2. In addition, just like the Aetna/Red Cross card at
issue here, the Global/Aetna card stated that it did not guarantee cover-
age. Id. at *2. Even though a Global employee assured the hospital that
Sally Reese Warren was covered, we held that Global was not a fiduciary
and as a non-fiduciary, its administrative processing decisions could not
bind Aetna. Id. at *2. The panel also held that Aetna did not breach its
fiduciary duties by delegating non-fiduciary authority to Global. Id. at
*2-*3.

                  6
855 F. Supp. at 131-32 (Processing and paying claims are administra-
tive, not discretionary functions, and an entity seized of the obligation
to simply make determinations about who and what is covered by
looking at the Plan's clearly established language is not an ERISA
fiduciary.).

However, even if Aetna were a fiduciary, the oral statements made
by it would be insufficient to modify the terms of an established
ERISA plan. In Biggers v. Wittek Indus., Inc. , 4 F.3d 291 (4th Cir.
1993), we held that oral and informal amendments to established
ERISA plans are completely incapable of altering the specified terms
of the plan's written coverage. Id. at 295; see also Coleman v. Nation-
wide Life Ins. Co., 969 F.2d 54, 58-59 (4th Cir. 1992), cert. denied,
506 U.S. 1081 (1993). ERISA requires that a plan be"established
and maintained pursuant to a written instrument," 29 U.S.C.A.
§ 1102(a)(1), and that said written instrument must describe the for-
mal procedures pursuant to which the plan can be amended, 29
U.S.C.A. § 1102(b)(3). Based on that clear statutory directive we
have concluded that in order to be effective, "any modification to a
plan must be implemented in conformity with the formal amendment
procedures and must be in writing." Id. at 58.

Appendix I to the Red Cross Plan states that Red Cross's Board of
Governors is the entity with the power to approve or reject amend-
ments to the Plan after recommendation by the Board of Trustees.
Aetna, therefore, does not have the authority to effect unilateral modi-
fications to the Plan by giving erroneous information to potential ben-
efit claimants like HealthSouth. Thus, nothing in the Plan, the Red
Cross/Aetna contract, or any other written document before this court
indicates that Aetna may unilaterally alter the plan by bestowing ben-
eficiary status upon a previously non-covered individual. In short, if
we adopted HealthSouth's position, the Plan at issue would be modi-
fied such that someone not entitled to benefits would be found enti-
tled to benefits. That result flies in the face of ERISA's clear statutory
language. See Coleman, 969 F.2d at 59. Accordingly, the district
court correctly granted summary judgment to Red Cross on Health-
South's modification claims.

IV.

HealthSouth also contends that it was not given an adequate oppor-
tunity to complete discovery. This argument is without merit.

                     7
A district court should refuse to grant summary judgment when an
opposing party needs additional time to complete discovery and prop-
erly respond to the motion. See Anderson v. Liberty Lobby, 477 U.S.
242, 251 n.5 (1986). In the instant matter, however, HealthSouth was
provided with a copy of the Aetna/Red Cross contract as well as all
other documents relevant to its standing to sue Red Cross. Unfortu-
nately for HealthSouth, it simply has no derivative standing to bring
an ERISA claim based on any actions taken by Aetna. No amount of
discovery could have unearthed information which would contravene
the clear language of the Plan and disturb the fact that Eric Shaw
never was a Plan beneficiary.

V.

Apparently realizing the minimal chance of success on its modifi-
cation claims, HealthSouth further maintains that the district court
erred when it refused to allow it to amend its complaint to add an
estoppel cause of action against Red Cross. We disagree.

The decision to grant a party leave to amend its pleadings rests
within the sound discretion of the district court. See Sandcrest Outpa-
tient Serv. v. Cumberland County Hosp. Sys., 853 F.2d 1139, 1148
(4th Cir. 1988). Nevertheless, it is well settled that, "in the absence
of any apparent or declared reason--such as undue delay, bad faith,
or dilatory motive on the part of the movant, . . . undue prejudice to
the opposing party by virtue of allowance of the amendment, futility
of amendment, etc.--the leave sought should, as the rules require, be
freely given." Foman v. Davis, 371 U.S. 178, 182 (1962). Moreover,
delay in requesting the amendment is generally not a sufficient rea-
son, by itself, to deny the requested motion. See Davis v. Piper Air-
craft Corp., 615 F.2d 606, 613 (4th Cir.), cert. dismissed, 448 U.S.
911 (1980). Delay, however, can be a sufficient reason for denial of
leave when accompanied by futility or prejudice to the non-movant.
See Deasy v. Hill, 833 F.2d 38, 40 (4th Cir. 1987), cert. denied, 485
U.S. 977 (1988). Lastly, as long as its reasons are apparent, a district
court's failure to articulate grounds for denying a plaintiff's leave to
amend does not amount to an abuse of discretion. See Island Creek
Coal Co. v. Lake Shore, Inc., 832 F.2d 274, 279 (4th Cir. 1987).

According to HealthSouth, because Aetna is Red Cross's agent for
the purpose of health benefit determinations, Aetna's declaration of

                    8
coverage for Eric Shaw is binding on Red Cross. This is a claim that
"sounds" in both state and federal promissory estoppel. HealthSouth
concedes that it does not have any state law promissory estoppel
claim because any such state claim falls within ERISA's broad pre-
emption provision. See 29 U.S.C.A. § 1144; see also Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, 96-97 (1983) (ERISA preemption is con-
strued broadly and displaces any state law which relates to an ERISA
plan or "if it has a connection with or reference to such a plan.").

Nor can HealthSouth proceed with a federal common law estoppel
claim, for we have already squarely rejected such a contention. See
Singer v. Black & Decker Corp., 964 F.2d 1449, 1452 (4th Cir. 1992)
("[R]esort to federal common law generally is inappropriate when its
application would conflict with the statutory provisions of ERISA, . . .
or threaten to override the explicit terms of an established ERISA
plan."); see also Degan v. Ford Motor Co., 869 F.2d 889, 895 (5th
Cir. 1989) (Use of estoppel principles to bring about an oral modifica-
tion of a written ERISA plan would conflict with ERISA's preference
for written agreements.). We have never recognized estoppel argu-
ments which would serve to vary the terms of a written plan, see
Coleman, 969 F.3d at 54,2 a fact which HealthSouth cannot avoid. We
are aware that leaving HealthSouth to bear the cost of Eric Shaw's
hospital stay is an unsatisfying conclusion. However, ERISA simply
does not recognize the validity of oral or non-conforming written
modifications to ERISA plans. See 29 U.S.C.§§ 1102(a)(1), and
1102(b)(3).
_________________________________________________________________
2 HealthSouth seeks to avoid our rulings which have disallowed oral
modifications by claiming that no modification of the Plan at issue is
necessary. According to HealthSouth, Eric Shaw could be a beneficiary
under the Plan so there is no need to change the Plan's terms in order to
afford it the relief it seeks. Essentially, HealthSouth maintains that all
Aetna did was "interpret" the Plan's terms and designate Eric Shaw a
beneficiary -- all without modifying the Plan at all. Unfortunately for
HealthSouth, we have already addressed this very sort of "interpretation"
argument and rejected it in Coleman, 969 F.2d at 59 (Estopping a Plan
Administrator from denying benefits to an individual who was not a par-
ticipant, nor a beneficiary, would have the unmitigated effect of modify-
ing the Plan's written terms--a result that is in clear conflict with the
statute's requirements.).

                   9
The decisions of Elmore v. Cone Mills Corp., 23 F.3d 855 (4th Cir.
1994), and Hall v. Cropmate, 887 F. Supp. 1193 (S.D. Ind. 1995), do
not require a different result. HealthSouth cites Elmore for the propo-
sition that a fiduciary in an ERISA action can now be estopped from
denying plan coverage based on oral assertions made to a claimed
beneficiary. That reliance is misplaced.

In Elmore, this court, sitting en banc , addressed the question of
whether estoppel principles could be used to bind a plan fiduciary to
oral modifications made before terms of the plan were written down
and became binding. 23 F.3d at 863. The plan at issue in Elmore was
adopted subsequent to the contract that formed the basis for the plain-
tiff's estoppel claim. Id. at 868. Thus, the alleged beneficiaries in
Elmore did not seek to alter a pre-existing ERISA plan, they merely
asked that a contract entered into prior to the ERISA plan's adoption
be given binding effect. Id. The district court held that an estoppel
claim could go forward on those facts. An equally divided en banc
court affirmed that decision.

Thus, Elmore carries no precedential weight, see Arkansas Writers'
Project v. Ragland, 481 U.S. 221, 234 n.7 (1987), and HealthSouth's
reliance on Elmore fails on that basis alone. In any event, a careful
reading of the different opinions in Elmore shows that four of the
judges who would have allowed an estoppel claim on the facts pres-
ented in Elmore would also reject HealthSouth's argument here.
Judge Murnaghan took great pains in his concurring opinion, in which
three other judges joined, to distinguish Elmore on its facts from
Coleman and Singer. See Elmore 23 F.3d at 868-69 (Murnaghan, J.,
concurring). In determining that the district court was correct when
it allowed the estoppel argument to proceed, Judge Murnaghan clearly
did not take issue with either Singer or Coleman. Id. at 869. Specifi-
cally, Judge Murnaghan stated:

          Prior existence of the Plan when the contract was formed
          might have caused problems to arise. In Coleman v. Nation-
          wide Life Ins. Co., we held that estoppel principles cannot
          be used to effect a modification of an existing ERISA bene-
          fit plan. In such a case, adoption of an estoppel theory
          "would require this court to rewrite the contract of insurance
          . . . ." Id. at 56 . . . . I have no quarrel with any of these prior

                     10
          decisions in their proper context. However, here the Plan
          was created subsequent to the contract, so no such Plan
          existed when the contract came into existence.

Id. Consequently, even under Judge Murnaghan's approach in
Elmore, Coleman and Singer mandate the failure of HealthSouth's
estoppel claim here.

Similarly, Hall v. Cropmate is of no help to HealthSouth. In Hall,
the district court for the Southern District of Indiana concluded that
an estoppel claim could proceed on facts quite similar to the case
before us. 887 F. Supp. 1193. The Indiana district court held that
when an individual's claim concerns whether coverage is afforded by
the plan, no modification need be undertaken, and an estoppel claim
is cognizable in that instance. Id. at 1197. Although the district court's
reasoning in Hall supports HealthSouth's argument, we will not, and
cannot overturn our clear precedent in order to follow the Southern
District of Indiana.3 Again, Coleman made it clear that when a non-
beneficiary seeks to obtain benefits pursuant to an ERISA plan, any
change to that plan, or interpretation of that plan, is a modification
which is prohibited by ERISA's plain language. Coleman, 969 F.2d
at 59.

In summary, we affirm the district court's refusal to allow Health-
South to amend its complaint because allowing the amendment would
have been futile and would have, at most, delayed the inevitable dis-
missal of all of HealthSouth's claims against Red Cross. See Deasy,
833 F.2d at 40.
_________________________________________________________________
3 The decision by the Indiana district court may not be completely with-
out support in the context of Seventh Circuit jurisprudence. Hall princi-
pally relied on Miller v. Taylor Insulation Co. , 39 F.3d 755 (7th Cir.
1994), a case which apparently recognized the possibility of a promis-
sory estoppel claim in the ERISA context. ". . . Taylor may be estopped
to deny that Miller is a participant." Id. at 758. However, based on the
authority of Coleman, which is the controlling authority in this Circuit,
and the reasons set forth herein, HealthSouth cannot establish a promis-
sory estoppel claim. HealthSouth proposes an oral modification to the
Plan and Coleman rejects a claim of that nature. But see id., at 759.

                     11
VI.

For the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED

                     12
