                                                                    F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                                  PUBLISH
                                                                    MAY 21 1998
                  UNITED STATES COURT OF APPEALS
                                                                  PATRICK FISHER
                                                                         Clerk
                             TENTH CIRCUIT



 In re:

 SOUTHERN STAR FOODS, INC.,

             Debtor,                                No. 97-7102

 _____________________________

 STATE INSURANCE FUND,

             Appellant,

 v.

 SOUTHERN STAR FOODS, INC.;
 KENNETH G.M. MATHER, Trustee,

             Appellee.


                      APPEAL FROM THE
          UNITED STATES BANKRUPTCY APPELLATE PANEL
                        BAP No. EO-96-034
                          E.D. Oklahoma
                        (D.C. No. 94-71621)


Submitted on the briefs:

Steven J. Adams and Mary C. Coulson of Gardere & Wynne, L.L.P., Tulsa,
Oklahoma (Rodney Hayes, Oklahoma City, Oklahoma, of Counsel) for Appellant.

Kenneth G.M. Mather and Pamela H. Goldberg of Hall, Estill, Hardwick, Gable,
Golden & Nelson, P.C., Tulsa, Oklahoma, for Appellee.
Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.


BRISCOE, Circuit Judge.




      Appellant, the State Insurance Fund (Fund), appeals from the Bankruptcy

Appellate Panel (BAP) decision that its claim for unpaid workers’ compensation

insurance premiums is not entitled to priority status under 11 U.S.C. § 507(a)(4)

in the Chapter 7 bankruptcy of the debtor, Southern Star Foods. 1 See State Ins.

Fund v. Mather (In re Southern Star Foods, Inc.), 210 B.R. 838 (10th Cir. B.A.P.

1997). This appeal presents a purely legal question, which we review de novo.

See Broitman v. Kirkland (In re Kirkland), 86 F.3d 172, 174 (10th Cir. 1996).

We affirm.

      Southern Star contracted with the Fund to provide workers’ compensation

insurance coverage. On November 17, 1994, the insurance was canceled. At the

time the coverage was canceled, Southern Star owed the Fund hundreds of

thousands of dollars in unpaid premiums. When an involuntary petition in

bankruptcy was filed against Southern Star on December 23, 1994, the Fund


      1
             After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.

                                        -2-
claimed priority status for their unsecured creditors’ claim under § 507(a)(4), in

the amount of $186,898.27. 2 The trustee objected to the Fund’s claim of priority

status, and the Bankruptcy Court sustained the objection, finding that § 507(a)(4)

did not give priority status to a claim for unpaid workers’ compensation

premiums. The Fund appealed the decision to the BAP, which affirmed the denial

of priority status under § 507(a)(4) in a very thorough and well-reasoned opinion.

      The relevant portion of § 507(a)(4) provides:

      (a) The following expenses and claims have priority in the following
      order;
      (4) Fourth, allowed unsecured claims for contributions to an
      employee benefit plan--
       (A) arising from services rendered within 180 days before the date
      of the filing of the petition or the date of the cessation of the debtor’s
      business, whichever occurs first; but only
       (B) for each such plan, to the extent of--
        (I) the number of employees covered by each such plan multiplied
      by $4,000; less
        (ii) the aggregate amount paid to such employees under
      paragraph (3) of this subsection, plus the aggregate amount paid by
      the estate on behalf of such employees to any other employee benefit
      plan. 3

      The position of the parties in this appeal is simple and straightforward.

The Fund argues that the unpaid workers’ compensation insurance premiums


      2
             The parties have stipulated that this is the amount of premiums
incurred within 180 days of the petition date. See 11 U.S.C. § 507(a)(4)
(providing for priority of certain claims arising from services rendered within 180
days before the filing of the petition).
      3
             Paragraph (3) provides priority for unpaid wages.

                                         -3-
owed to it by Southern Star are contributions to an employee benefit plan within

the meaning of § 507(a)(4), and are, therefore, entitled to priority status. The

trustee argues that they are not.

      We begin our analysis with the premise that the overriding objective in

bankruptcy cases is equal distribution of the debtor’s limited resources among its

creditors. See Isaac v. Temex Energy, Inc. (In re Amarex, Inc.), 853 F.2d 1526,

1530 (10th Cir. 1988). To that end, statutory priorities must be narrowly

construed. See id.

      The Bankruptcy Code does not define “contributions to an employee benefit

plan.” The Fund urges us to look to the Employee Retirement Income Security

Act of 1974 (ERISA) and apply the definition of “employee benefit plan” set

forth in that statute to § 507(a)(4). We decline to read the ERISA definition of

“employee benefit plan” into the Bankruptcy Code. We agree with the Eighth

Circuit that “‘[t]he ERISA definition and associated court guidelines were

designed to effectuate the purpose of ERISA, not the Bankruptcy Code.’”

Employers Ins. of Wausau, Inc. v. Ramette (In re HLM Corp.), 62 F.3d 224, 226

(8th Cir. 1995) (quoting Employers Ins. of Wausau, Inc. v. Ramette (In re HLM

Corp.), 183 B.R. 852, 855 (D. Minn. 1994)); accord In re The Montaldo Corp.,

207 B.R. 112, 115 (Bankr. M.D.N.C. 1997); Official Labor Creditors Comm. v.

Jet Florida Sys., Inc. (In re Jet Florida Sys., Inc.), 80 B.R. 544, 547 (S.D. Fla.


                                          -4-
1987); see also United States v. Reorganized CF&I Fabricators of Utah, Inc., 518

U.S. 213, 116 S. Ct. 2106, 2111-13 (1996) (declining to apply usage of term in

Internal Revenue Code to term in Bankruptcy Code, absent some Congressional

indication). Further, broadening the Bankruptcy Code by incorporating the

ERISA definition into the § 507(a)(4) priority determination would be contrary to

the tenet that priorities are to be narrowly construed. See In re Amarex, Inc., 853

F.2d at 1530.

      Two other circuit courts have addressed the issue of whether workers’

compensation premiums are contributions to an employee benefit plan within the

meaning of § 507(a)(4) so as to be entitled to priority status, and they reached

opposite conclusions. Compare Employers Ins. of Wausau, Inc. v. Ramette (In re

HLM Corp.), 62 F.3d 224, 227 (8th Cir. 1995) (holding that unpaid workers’

compensation premiums were not contributions to an employee benefit plan

entitled to priority status), aff’g 183 B.R. 852 (D. Minn. 1994), aff’g 165 B.R. 38

(Bankr. D. Minn. 1994), with Employers Ins. of Wausau v. Plaid Pantries, Inc., 10

F.3d 605, 607 (9th Cir. 1993) (holding that unpaid workers’ compensation

premiums were entitled to priority status under § 507(a)(4)). Other courts finding

that claims for workers’ compensation premiums were not entitled to priority

under § 507(a)(4) include In re Southern Star Foods, Inc., 210 B.R. at 844, aff’g

201 B.R. 291 (Bankr. E.D. Okla. 1996); and In re Allentown Moving & Storage,


                                         -5-
Inc., 208 B.R. 835, 837 (Bankr. E.D. Pa. 1997), aff’d 214 B.R. 761 (E.D. Pa.

1997). Other cases finding that claims for workers’ compensation premiums were

entitled to priority include In re Braniff, Inc., 218 B.R. 628, 635 (Bankr. M.D.

Fla. 1998) (deciding issue without examining legislative history, and adopting the

position in In re Gerald T. Fenton, Inc. with no discussion of ERISA); In re

Gerald T. Fenton, Inc., 178 B.R. 582, 587-88, 590 (Bankr. D. D.C. 1995)

(applying ERISA definition of “employee benefit plan”); and Perlstein v.

Rockwood Ins. Co. (In re AOV Indus., Inc.), 85 B.R. 183, 186, 189 (Bankr. D.

D.C. 1988) (same). 4

      Before we can answer this question of first impression in this Circuit, we

must first determine whether the meaning of the statute is evident from its plain


      4
              Also helpful to our analysis, although not directly on point, are the
decisions that have reached the question of priority with regard to premiums for
types of insurance other than workers’ compensation. Compare In re The
Montaldo Corp., 207 B.R. 112, 115-16 (Bankr. M.D.N.C. 1997) (holding no
priority for health insurance premiums for past coverage because payment for past
coverage benefits only third-party insurer, not employees); In re AER-Aerotron,
Inc., 182 B.R. 725, 726-27 (Bankr. E.D.N.C. 1995) (finding no priority for group
health/life insurance premiums because legislative history and plain meaning of
statute indicate priority is meant for employees, not third parties), with Official
Creditors’ Comm. of Lummus Indus., Inc. v. Blue Cross & Blue Shield of
Georgia, Inc. (In re Lummus Indus., Inc.), 193 B.R. 615, 617-18 (Bankr. M.D.
Ga. 1996) (finding unreimbursed health insurance claims under self-funded
insurance plan entitled to priority where self-insurance plan was part of the
compensation for debtor’s employees); Official Labor Creditors Comm. v. Jet
Florida Sys., Inc. (In re Jet Florida Sys., Inc.), 80 B.R. 544, 547-48 (S.D. Fla.
1987) (finding employee claims for unreimbursed insurance claims under self-
insurance plan entitled to priority).

                                         -6-
language, or if the phrase is ambiguous. The split in the circuits is, in itself,

evidence of the ambiguity of the phrase “contributions to an employee benefit

plan;” its meaning is not evident based on the plain language of the statute.

Because the phrase is ambiguous, we turn to the legislative history of the statute

to aid our analysis. See United States v. Simmonds, 111 F.3d 737, 742 (10th Cir.

1997).

         Like the BAP, we agree with the Eighth Circuit that the legislative history

clarifies that § 507(a)(4) grants priority for “fringe benefits” accepted in lieu of

wages. In re HLM, Corp., 62 F.3d at 225-26. 5 In enacting § 507(a)(4), Congress

stated:

         The Supreme Court has held that the wage priority does not extend to
         fringe benefits, such as pension fund or health insurance
         contributions. When the wage priority was last amended in 1926,
         perhaps the intent of Congress was not to extend it in that fashion,
         because fringe benefits were little heard of at the time. Now,
         however, to ignore the reality of collective bargaining that often
         trades wage dollars for fringe benefits does a severe disservice to
         those working for a failing enterprise.
                In recognition of changes since 1926, the bill . . . establishes a
         new category, a fourth priority immediately following the wage
         priority, for contributions and payments to employee benefit plans.


         5
              The fact that the holding of In re HLM Corp. is based on Minnesota’s
workers’ compensation scheme does not negate its persuasive authority. Only a
small portion of the court’s reasoning is based on the unique aspects of that
state’s statutory scheme; the bulk of the analysis is based on general workers’
compensation characteristics. The factual distinctions between Oklahoma’s and
Minnesota’s statutory schemes do not vitiate the applicability of In re HLM Corp.
to this case.

                                            -7-
      This will include health insurance programs, life insurance plans,
      pension funds, and all other forms of employee compensation that is
      not in the form of wages.

H.R. Rep. No. 95-595, at 187 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6148

(footnotes omitted). Specifically addressing § 507(a)(4), the legislative history

provides:

             Paragraph (4) overrules United States v. Embassy Restaurant,
      359 U.S. 29 (195[9]), which held that fringe benefits were not
      entitled to wage priority status. The bill recognizes the realities of
      labor contract negotiations, under which wage demands are often
      reduced if adequate fringe benefits are substituted. The priority
      granted is limited to claims for contributions to employee benefit
      plans such as pension plans, health or life insurance plans, and
      others, arising from services rendered after the earlier of one year
      before the bankruptcy case and the date of cessation of the debtor’s
      business.

Id. at 357, reprinted in 1978 U.S.C.C.A.N. 5963, 6313 (footnotes omitted); see

also S. Rep. No. 95-989, at 69 (1978) reprinted in 1978 U.S.C.C.A.N. 5787, 5855.

      The legislative history makes it clear that Congress enacted § 507(a)(4) to

benefit employees. It recognized the reality that employees often bargain for

fringe benefits in lieu of higher wages. The two Supreme Court cases that gave

rise to the enactment of § 507(a)(4) both involved plans organized to provide

benefits for employees pursuant to collective bargaining agreements. See

Embassy Restaurant, 359 U.S. at 29-30 (contributions owed by employer to

welfare fund); Joint Indus. Bd. of Elec. Indus. v. United States, 391 U.S. 224, 225

(1968) (contributions owed by employer to employees’ annuity plan). In those

                                         -8-
cases, the Court denied priority status under the statutory priority for wages in

effect at the time, for contributions to plans that provided fringe benefits for

employees. Section 507(a)(4) was enacted to change that result.

      Workers’ compensation coverage, on the other hand, is not a fringe benefit

that an employee can bargain for, either explicitly or impliedly, in lieu of higher

wages. It is not a fringe benefit or wage substitute, as contemplated by Congress

in enacting § 507(a)(4). In addition, the legislative history indicates that workers’

compensation is not an employee benefit plan because the coverage benefits the

employer at least as much, if not more, than the employee. As both the

Bankruptcy Court and the BAP recognized, “since workers’ compensation

premiums are required to meet an obligation imposed by the state, they were

primarily for Southern Star’s benefit, not its employees.” In re Southern Star

Foods, 210 B.R. at 843. To that end,

             [t]he purpose of the Oklahoma workers’ compensation benefit
      scheme simply cannot be interpreted as a “fringe benefit”
      supplementing wages. In fact, the scheme was a compromise
      between workers and employers in which the workers gave up the
      right to sue for damages for work-related injuries, and the employers
      gave up certain defenses, such as the “fellow servant rule.” Carroll
      [v. District Court], 579 P.2d [828,] 830 [(Okla. 1978)]. The
      Oklahoma Supreme Court observed, “[e]very common-law right of
      the workman has been abrogated, and another right substituted, not
      governed by common-law rules. . . . The injured workman can no
      longer use common-law rules . . . to extract compensation for injuries
      sustained by him.” Brooks v. A.A. Davis & Co., 254 P. 66, 70
      (1926).


                                          -9-
Id. at 844.

          In reaching our holding today, we are mindful of the Ninth Circuit decision

in Plaid Pantries, with which we respectfully disagree. That court examined the

legislative history, but interpreted it differently in holding that premiums owed

for workers’ compensation coverage were entitled to priority under § 507(a)(4).

See Plaid Pantries, 10 F.3d at 607. In deciding that the benefit need not be a

wage substitute, that court construed the statutory priority broadly, something we

must guard against. The court in Plaid Pantries cites In re Saco Local Dev. Corp.,

711 F.2d 441 (1st Cir. 1983) in support of its holding. We note that In re Saco is

not inconsistent with our holding in this case. That court considered the question

of whether § 507(a)(4) was intended to afford priority only for contributions made

to benefit plans that resulted from a formal collective bargaining process. See id.

at 448-49. In holding that the legislative history did not limit the fringe benefit

priority to those benefits resulting from formal collective bargaining, the court

noted that the record contained evidence that the group life/health/disability plan

resulted in a de facto bargain for which employees accepted lower wages than

other firms paid. See id. In re Saco does not conflict with our holding in this

case. 6


          6
            Because it is not necessary to our decision in this case, we do not
reach the question of whether Congress intended that third parties, such as
                                                                      (continued...)

                                           -10-
      We hold that premiums for workers’ compensation insurance are not

contributions to an employee benefit plan as contemplated by Congress in the

enactment of § 507(a)(4). Therefore, a claim for unpaid workers’ compensation

premiums is not entitled to priority status under that statute. AFFIRMED.




      6
       (...continued)
insurance companies, may claim the priority afforded in § 507(a)(4). Compare In
re Saco, 711 F.2d at 449 (holding that “[t]o allow the insurer to obtain its
premiums through the priority would seem the surest way to provide the
employees with the policy benefits to which they are entitled.”), with In re
Montaldo, 207 B.R. at 117 (finding that to allow insurance company priority
would be contrary to § 507(d)); In re AER-Aerotron, 182 B.R. at 727 (finding that
§ 507(a)(4) does not provide priority to third parties).

                                       -11-
