
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1002                                    JAMES JOHNSON,                                 Plaintiff, Appellee,                                          v.                           WATTS REGULATOR COMPANY, ET AL.,                               Defendants, Appellants.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Eleanor  H. MacLellan,  with  whom Sean  M.  Dunne, Ross  M.               _____________________              _______________  ________          Weisman, and Sulloway & Hollis were on brief, for appellants.          _______      _________________               Christopher  J.  Seufert,  with  whom  Seufert  Professional               ________________________               _____________________          Association was on brief, for appellee.          ___________                              _________________________                                   August 23, 1995                              _________________________                    SELYA,  Circuit  Judge.   This  appeal  requires us  to                    SELYA,  Circuit  Judge.                            ______________          address,  for   the  first  time,  a   "safe  harbor"  regulation          promulgated  by the Secretary of Labor (the Secretary) as a means          of exempting certain group insurance programs from the strictures          of the Employee Retirement Income  Security Act of 1974  (ERISA),          29 U.S.C.    1001-1461.  Determining, as we do, that the district          court  appropriately applied  the regulation,  and  discerning no          clear  error in the court's  factual findings on  other issues in          the case, we affirm the judgment below.          I.  BACKGROUND          I.  BACKGROUND                    Plaintiff-appellee  James Johnson worked  as a forklift          operator  at the  Webster  Valve division  of defendant-appellant          Watts Regulator Co. (Watts) in Franklin, New Hampshire.  While so          employed, plaintiff  elected to participate in  a group insurance          program made available to Watts' employees by defendant-appellant          CIGNA Employee  Benefit Company  d/b/a Life Insurance  Company of          North  America (CIGNA).    Under the  program plaintiff  received          insurance protection against accidental death, dismemberment, and          permanent disability.   He  paid  the premium  through a  payroll          deduction plan.  Watts, in turn, remitted the premium payments to          CIGNA.                       On  June 15, 1990, while  a participant in the program,          plaintiff  sustained  a  severe   head  injury  in  a  motorcycle          accident.  He remained disabled for the ensuing year, and, having          crossed the policy's temporal  threshold, he applied for benefits          on  July 17,  1991.   CIGNA  turned  him down,  claiming  that he                                          2          retained the residual capacity  to do some work.   Plaintiff then          sued Watts and CIGNA in a New Hampshire state court.  Postulating          the  existence  of   an  ERISA-related   federal  question,   the          defendants removed the action to the district court.                    Following  an evidentiary  hearing, the  district court          ruled that ERISA did not pertain.  See Johnson v. Watts Regulator                                             ___ _______    _______________          Co.,  No.  92-508-JD,  1994  WL  258788  (D.N.H.  May  3,  1994).          ___          Nevertheless,  the court  denied  plaintiff's  motion to  remand,          noting diverse citizenship and the  existence of a controversy in          the  requisite amount.   See  28 U.S.C.    1332(a).   The parties                                   ___          subsequently tried the  case to the bench.   The judge heard  the          evidence, perused  the group  policy, applied New  Hampshire law,          found  plaintiff  to be  totally  and  permanently disabled,  and          awarded the  maximum benefit,  together with attorneys'  fees and          costs.  See Johnson  v. Watts Regulator Co., No.  92-508-JD, 1994                  ___ _______     ___________________          WL 587801 (D.N.H. Oct. 26, 1994).  This appeal ensued.          II.  THE ERISA ISSUE          II.  THE ERISA ISSUE                    The  curtain-raiser  question  in  this  case  involves          whether  the  program  under  which Johnson  sought  benefits  is          subject to Title  I of  ERISA.  Confronting  this issue  requires          that  we   interpret  and  apply  the   Secretary's  safe  harbor          regulation,  29 C.F.R.   2510.3-1(j) (1994).  We divide this part          of our analysis into  four segments.   First, we explain why  the          curtain-raiser question matters.   Second, we limn the applicable          standard  of review.  Third, we discuss the regulation itself and          how it fits into the statutory and regulatory scheme.  Fourth, we                                          3          scrutinize the  record and  test the district  court's conclusion          that the program is within the safe harbor.                              A.  The ERISA Difference.                              A.  The ERISA Difference.                                  ____________________                    From   the  earliest  stages   of  the   litigation,  a          controversy  has raged  over  the relationship,  if any,  between          ERISA  and the  group  insurance program  underwritten by  CIGNA.          This controversy  stems from  perceived self-interest:   if ERISA          applies, preemption is  triggered, see 29 U.S.C.    1144(a), and,                                             ___          in many situations, the substitution of ERISA principles (whether          derived from the statute  itself or from federal common  law) for          state-law  principles  can make  a  pronounced  difference.   For          example, ERISA preemption may cause potential state-law  remedies          to vanish, see,  e.g., Carlo  v. Reed Rolled  Thread Die Co.,  49                     ___   ____  _____     ___________________________          F.3d 790, 794 (1st Cir.  1995);  McCoy v. Massachusetts Inst.  of                                           _____    _______________________          Technology,  950 F.2d 13, 18  (1st Cir. 1991),  cert. denied, 504          __________                                      _____ ______          U.S. 910 (1992), or may change the standard of review, see, e.g.,                                                                 ___  ____          Firestone  Tire & Rubber Co. v.  Bruch, 489 U.S. 101, 115 (1988),          ____________________________     _____          or may affect the  admissibility of evidence, see, e.g.,  Taft v.                                                        ___  ____   ____          Equitable Life Ins. Co., 9 F.3d 1469, 1471-72 (9th Cir. 1993), or          _______________________          may determine whether a jury trial is available, see, e.g., Blake                                                           ___  ____  _____          v. Unionmutual Stock  Life Ins.  Co., 906 F.2d  1525, 1526  (11th             _________________________________          Cir. 1990).                    We are  uncertain which of these  boggarts has captured          the  minds of the protagonists in this  case.  But exploring that          question does not strike us  as a prudent use of scarce  judicial          resources.   Given the  marshalled realities    the parties agree                                          4          that the ERISA difference is of potential significance here; they          successfully persuaded the district court to that view; and it is          entirely plausible under the circumstances of this case  that the          applicability vel non of ERISA makes a meaningful difference   we                        ___ ___          refrain from  speculation about  the parties' tactical  goals and          proceed directly  to a determination  of whether the  court below          correctly concluded that state law provides the rule of decision.                               B.  Standard of Review.                               B.  Standard of Review.                                   __________________                    The question  of whether ERISA applies  to a particular          plan or program requires an evaluation of the facts combined with          an elucidation of the law.  See, e.g., Kulinski v. Medtronic Bio-                                      ___  ____  ________    ______________          Medicus,  Inc., 21 F.3d 254, 256 (8th Cir. 1994) (explaining that          ______________          the existence  of an ERISA plan  is a mixed question  of fact and          law);  Peckham v. Gem  State Mut., 964 F.2d  1043, 1047 n.5 (10th                 _______    _______________          Cir. 1992)  (similar).  For  purposes of appellate  review, mixed          questions  of  fact and  law ordinarily  fall along  a degree-of-          deference  continuum,  ranging  from  plenary   review  for  law-          dominated  questions  to  clear-error review  for  fact-dominated          questions.  See In re Extradition of Howard, 996 F.2d 1320, 1327-                      ___ ___________________________          28   (1st  Cir.   1993).     Plenary   review   is,  of   course,          nondeferential, whereas clear-error  review is quite deferential.          See id.  Both standards are in play here.          ___ ___                    The interpretation  of a  regulation presents  a purely          legal question, sparking de  novo review.  See, e.g.,  Strickland                                                     ___  ____   __________          v.  Commissioner, Me. Dep't  of Human Serv., 48  F.3d 12, 16 (1st              _______________________________________          Cir. 1994); Liberty Mut.  Ins. Co. v. Commercial Union  Ins. Co.,                      ______________________    __________________________                                          5          978  F.2d 750,  757 (1st  Cir. 1992).   Once  the meaning  of the          regulation has been clarified, however, the "mixed" question that          remains    the regulation's applicability  in a given  case   may          require factfinding, and if it does, that factfinding is reviewed          only for  clear error.  To that extent, the existence of an ERISA          plan  becomes primarily  a  question of  fact.   See  Wickman  v.                                                           ___  _______          Northwestern  Nat'l  Ins. Co.,  908 F.2d  1077, 1082  (1st Cir.),          _____________________________          cert. denied,  498 U.S.  1013 (1990); Kanne  v. Connecticut  Gen.          _____ ______                          _____     _________________          Life Ins.  Co., 867 F.2d 489, 492  (9th Cir. 1988), cert. denied,          ______________                                      _____ ______          492 U.S. 906 (1989).                        C.  Statutory and Regulatory Context.                        C.  Statutory and Regulatory Context.                            ________________________________                    Congress  enacted ERISA  to  protect the  interests  of          participants in employee  benefit plans (including  the interests          of  participants' beneficiaries).  See 29 U.S.C.   1001(a) & (b);                                             ___          see also  Curtiss-Wright Corp. v. Schoonejongen, 115 S. Ct. 1223,          ___ ____  ____________________    _____________          1230 (1995); Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 15-16                       ________________________    _____          (1987).  ERISA safeguards  these interests in a variety  of ways,          e.g.,   by  creating   comprehensive  reporting   and  disclosure          requirements, see 29 U.S.C.    1021-1031, by setting standards of                        ___          conduct   for  fiduciaries,   see  id.       1101-1114,   and  by                                        ___  ___          establishing an appropriate remedial  framework, see id.    1131-                                                           ___ ___          1145.  An  integral part  of the  statutory scheme  is a  broadly          worded  preemption clause  that, in  respect to  covered employee          benefit plans,  sets to  one side  "all  laws, decisions,  rules,          regulations, or other State  action having the effect of  law, of          any State."  Id.   1144(a).  The purpose of the preemption clause                       ___                                          6          is to enhance the  efficient operation of the federal  statute by          encouraging  uniformity  of  regulatory  treatment   through  the          elimination of state and local supervision over ERISA plans.  See                                                                        ___          Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990); McCoy,          __________________    _________                            _____          950 F.2d at 18.                    For an employee welfare benefit plan or program to come          within ERISA's sphere of influence, it  must, among other things,          be  "established  or maintained"  by  an  employer,1 an  employee          organization,  or  both.   See  29  U.S.C.     1002(1); see  also                                     ___                          ___  ____          Wickman, 908 F.2d at 1082 (enumerating necessary components of an          _______          ERISA plan);  Donovan v.  Dillingham, 688  F.2d 1367,  1370 (11th                        _______     __________          Cir. 1982) (en  banc)(same).   The parties agree  that the  group          insurance program that CIGNA wrote for Watts' employees, covering          accidental  death,  dismemberment,   and  permanent   disability,          qualifies  as a  "program" of  employee welfare benefits  as that          term is used in the statute.  See generally 29  U.S.C.   1002(1).                                        ___ _________          Hence, the ERISA question  reduces to whether the program  is one          "established or maintained" by an employer.                      To  address this  very  requirement, the  Secretary  of          Labor, pursuant to 29 U.S.C.   1135 (authorizing the Secretary to          promulgate  interpretive   regulations  in  the   ERISA  milieu),          promulgated a safe harbor regulation describing when (and to what          extent) an  employer or  a trade union  may be  involved with  an                                        ____________________               1The statute also requires that the  employer be "engaged in          commerce" or in an  industry or activity affecting commerce.   29          U.S.C.     1003(2).   It  is  undisputed  that  Watts meets  this          criterion.                                           7          employee  welfare benefit  program without  being deemed  to have          "established or maintained" it.   See 40 Fed. Reg.  34,527 (1975)                                            ___          (explaining the rationale underlying the safe harbor regulation);          see also Silvera v. Mutual Life Ins. Co., 884 F.2d  423, 426 (9th          ___ ____ _______    ____________________          Cir.  1989); see generally  Ronald J.  Cooke, ERISA  Practice and                       ___ _________                    ___________________          Procedure    2.06  (1994).   The regulation provides  in relevant          _________          part that the term                     "employee  welfare  benefit  plan" shall  not                    include  a  group  or   group-type  insurance                    program offered by an insurer to employees or                    members  of  an employee  organization, under                    which:                    (1) No contributions are made by  an employer                    or employee organization;                    (2)   Participation   [in]  the   program  is                    completely   voluntary   for   employees   or                    members;                    (3) The  sole  functions of  the employer  or                    employee  organization  with  respect to  the                    program are, without  endorsing the  program,                    to   permit  the  insurer  to  publicize  the                    program to  employees or members,  to collect                    premiums through payroll  deductions or  dues                    checkoffs and to remit  them to the  insurer;                    and                    (4)  The  employer  or employee  organization                    receives no consideration in the form of cash                    or otherwise in connection with  the program,                    other than reasonable compensation, excluding                    any   profit,  for   administrative  services                    actually rendered in connection  with payroll                    deductions or dues checkoffs.          29  C.F.R.     2510.3-1(j).     A  program  that  satisfies   the          regulation's  standards   will  be   deemed  not  to   have  been          "established  or  maintained" by  the  employer.   The  converse,          however, is not necessarily true; a program that fails to satisfy                                          8          the regulation's  standards is  not automatically deemed  to have          been "established or maintained" by the employer, but, rather, is          subject to further evaluation under the conventional tests.   See                                                                        ___          Hansenv. Continental Ins. Co., 940 F.2d 971, 976 (5th Cir. 1991).          ______   ____________________                    Here, we need not proceed beyond the regulation itself.          The safe harbor dredged by the regulation operates on the premise          that the  absence of employer involvement  vitiates the necessity          for ERISA safeguards.  In theory, an employer can assist its work          force by  arranging for  the provision  of desirable  coverage at          attractive rates,  but, by complying with  the regulation, assure          itself that, if  it acts  only as  an honest  broker and  remains          neutral vis-a-vis the plan's operation, it will not be put to the          trouble  and expense  that meeting ERISA's  requirements entails.          Failure  to fulfill any  one of the  four criteria  listed in the          regulation, however, closes the  safe harbor and exposes a  group          insurance program, if it otherwise qualifies as an ERISA program,          to the strictures of the Act.  See  Qualls v. Blue Cross of Cal.,                                         ___  ______    ___________________          Inc., 22 F.3d 839, 843 (9th Cir. 1994); Fugarino v. Hartford Life          ____                                    ________    _____________          & Accident  Ins. Co., 969  F.2d 178,  184 (6th Cir.  1992), cert.          ____________________                                        _____          denied, 113 S. Ct. 1401 (1993); Memorial Hosp. Sys. v. Northbrook          ______                          ___________________    __________          Life Ins. Co., 904 F.2d 236,  241 n.6 (5th Cir. 1990); Kanne, 867          _____________                                          _____          F.2d at 492.                    In  the instant  case,  the first,  second, and  fourth          criteria  are not in dispute.  Plaintiff paid the premium without          the employer's financial assistance; the decision to purchase the          coverage was his and  his alone; and Watts received  no forbidden                                          9          consideration.   We concentrate,  therefore, on  the regulation's          third facet.  This is a fitting focus, as the Department of Labor          has called  the employer neutrality  that the third  facet evokes          "the  key to the rationale for not  treating such a program as an          employee benefit plan . . . ."  40 Fed. Reg. 34,526.                    In dealing with the  regulation, courts have echoed the          agency's view of  the importance  of employer  neutrality.   See,                                                                       ___          e.g., Hensley v. Philadelphia  Life Ins. Co., 878 F.  Supp. 1465,          ____  _______    ___________________________          1471 (N.D. Ala. 1995); du Mortier v. Massachusetts Gen. Life Ins.                                 __________    ____________________________          Co.,  805  F. Supp.  816,  821  (C.D. Cal.  1992).    But as  the          ___          regulation  itself indicates, remaining  neutral does not require          an  employer to  build a  moat  around a  program or  to separate          itself from all aspects of program administration.  Thus, as long          as the employer merely advises  employees of the availability  of          group insurance,  accepts payroll  deductions, passes them  on to          the insurer, and performs other ministerial tasks that assist the          insurer in publicizing the program, it will not be deemed to have          endorsed the  program under  section 2510.3-1(j)(3).   See Kanne,                                                                 ___ _____          867 F.2d  at 492; du  Mortier, 805 F. Supp.  at 821.   It is only                            ___________          when an employer purposes to do more, and takes substantial steps          in  that  direction,  that  it  offends  the  ideal  of  employer          neutrality  and brings ERISA into the picture.  See, e.g., Kanne,                                                          ___  ____  _____          867  F.2d at 492-93 (holding  that an employer  group crossed the          line when it established  a trust entity in its name for purposes          of  plan  administration); Brundage-Peterson  v.  Compcare Health                                     _________________      _______________          Servs.  Ins. Corp., 877 F.2d 509, 510-11 (7th Cir. 1989) (finding          __________________                                          10          that   an  employer   who  determined   eligibility,  contributed          premiums, and collected and remitted premiums paid for dependents          did  not qualify  for  the safe  harbor  exemption); Shiffler  v.                                                               ________          Equitable Life Assur. Soc.  of U.S., 663 F. Supp.  155, 161 (E.D.          ___________________________________          Pa. 1986) (finding that an employer that touted a group policy to          employees  as part  of its  customary benefits package,  and that          specifically endorsed the  policy, did not  qualify for the  safe          harbor exemption), aff'd, 838 F.2d 78  (3d Cir. 1988).  This case                             _____          falls  between these  extremes, and  requires us  to clarify  the          standard for endorsement under section 2510.3-1(j)(3).                      The  Department of  Labor has  linked endorsement  of a          program on the part of an employee organization to its engagement          "in activities that  would lead a  member reasonably to  conclude          that  the program is part of a benefit arrangement established or          maintained by the employee organization."  Dep't of Labor Op. No.          94-26A (1994).2   What is sauce  for the goose  is sauce for  the          gander.  Thus, we believe that the agency, in a proper case, will          link  endorsement on  an  employer's part  to  its engagement  in          activities that would lead a worker reasonably to conclude that a          particular  group   insurance  program  is  part   of  a  benefit          arrangement backed by the company.                    This conclusion is bolstered by the Department's stated          rationale  to  the  effect  that  a  communication  to  employees                                        ____________________               2Opinion letters  issued by the  Secretary of Labor  are not          controlling even in the cases  for which they are authored.   See                                                                        ___          Reich v. Newspapers  of New Eng.,  Inc., 44 F.3d 1060,  1070 (1st          _____    ______________________________          Cir. 1995).   Nonetheless, courts may derive guidance  from them.          See id.          ___ ___                                          11          indicating  that an employer has  arranged for a  group or group-          type insurance program would constitute an endorsement within the          meaning of  section 2510.3-1(j)(3) if, taken  together with other          employer  activities, it leads  employees reasonably  to conclude          that  the  program  is  one  established  or  maintained  by  the          communicator.   See id.; see also 40 Fed. Reg. 34,526 (explaining                          ___ ___  ___ ____          that the current phrasing  of the safe harbor  provision replaced          an  earlier   version  requiring   that  the  employer   make  no          representation to its  employees that the insurance  program is a          benefit of  employment because critics found  the earlier version          "too vague and  difficult to apply").   In short, the agency  has          suggested  that the  employees'  viewpoint should  constitute the          principal frame of  reference in determining  whether endorsement          occurred.                    The interpretation of the safe harbor regulation by the          agency charged with administering and enforcing ERISA is entitled          to  substantial deference.  See Berkshire Scenic Ry. Museum, Inc.                                      ___ _________________________________          v. ICC, 52 F.3d 378,  381-82 (1st Cir. 1995); Keyes  v. Secretary             ___                                        _____     _________          of  the  Navy, 853  F.2d  1016,  1021  (1st  Cir. 1988).    Here,          _____________          moreover, the respect usually accorded an agency's interpretation          of  a statute is magnified  since the agency  is interpreting its          own  regulation.   See  Arkansas v.  Oklahoma,  503 U.S.  91, 112                             ___  ________     ________          (1992);  Puerto Rico Aqueduct & Sewer Auth. v. United States EPA,                   __________________________________    _________________          35 F.3d 600,  604 (1st Cir. 1994), cert. denied,  115 S. Ct. 1096                                             _____ ______          (1995).    So long  as the  agency's  interpretation does  not do          violence to  the  purpose  and  wording  of  the  regulation,  or                                          12          otherwise cross into forbidden terrain, courts should defer.  See                                                                        ___          Martin v. OSHRC, 499  U.S. 144, 150 (1991);  see also Stinson  v.          ______    _____                              ___ ____ _______          United  States, 113  S. Ct.  1913, 1919  (1993) (holding  that an          ______________          agency's  interpretation of  its  own regulations  must be  given          controlling weight unless plainly erroneous, inconsistent with  a          federal  statute, or  unconstitutional); Kelly v.  United States,                                                   _____     _____________          924 F.2d 355, 361 (1st Cir. 1991) (similar).                    In  this instance,  we believe  that deference  is due.          The Secretary's sense of the  safe harbor regulation is consonant          with  both the regulation's text and the overlying statute.  And,          moreover, looking  at the employer's conduct  from the employees'          place of vantage best ensures that employer neutrality  remains a          reality rather  than  a  mere illusion.    Phrased  another  way,          judging  endorsement  from  the   viewpoint  of  an   objectively          reasonable employee most efficaciously serves ERISA's fundamental          objective:  the protection  of employee benefit plan participants          and their beneficiaries.                    We rule,  therefore, that an  employer will be  said to          have  endorsed a  program within the  purview of  the Secretary's          safe  harbor regulation if, in light of all the surrounding facts          and  circumstances,  an  objectively  reasonable  employee  would          conclude on the basis of the employer's actions that the employer          had  not merely  facilitated the  program's availability  but had          exercised control over it or made it appear to be part and parcel          of the company's own benefit package.                                    D.  Analysis.                                    D.  Analysis.                                        ________                                          13                    Here,  the  district court  interpreted  the regulation          correctly and  concluded that  the company  had not  endorsed the          group insurance  program.   This conclusion is  fact-driven, and,          thus,  reviewable only for clear  error.3  See  Cumpiano v. Banco                                                     ___  ________    _____          Santander P.R., 902 F.2d 148, 152  (1st Cir. 1990); see also Fed.          ______________                                      ___ ____          R. Civ. P.  52(a).  Thus, the trier's findings  of fact cannot be          set aside unless,  on reviewing  all the evidence,  the court  of          appeals is left  with an  abiding conviction that  a mistake  has          been  committed.  See Dedham Water Co. v. Cumberland Farms Dairy,                            ___ ________________    _______________________          Inc., 972 F.2d  453, 457 (1st Cir.  1992); Cumpiano, 902  F.2d at          ____                                       ________          152-153.  Applying this deferential  standard, we cannot say that          the trial court's "no endorsement" finding is clearly erroneous.                    The   anatomy   of   the   court's   determination   is          instructive.  Based primarily on  the testimony of two  corporate          officials    Watts'  benefits administrator  and Webster  Valve's          employee relations manager   the court found that the company had                                        ____________________               3The  question of endorsement vel non is a mixed question of                                             ___ ___          fact  and law.  In some cases  the evidence will point unerringly          in one direction so that a  rational factfinder can reach but one          conclusion.  In those cases, endorsement becomes a matter of law.          Cf.  Griffin v.  United  States,  502  U.S.  46,  55  n.1  (1991)          ___  _______     ______________          (discussing  "adequacy  on  the proof  as  made"  as meaning  not          whether the evidence  sufficed to  enable an alleged  fact to  be          found, but, rather,  whether the facts adduced at  trial sufficed          in  law to support a  verdict); Anderson v.  Liberty Lobby, Inc.,                                          ________     ___________________          477 U.S. 242,  251-52 (1986) (describing the  appropriate mode of          inquiry for directed verdicts and  summary judgments).  In  other          cases, the legal significance  of the facts is less  certain, and          the  outcome will  depend on  the inferences that  the factfinder          chooses to draw.  See, e.g.,  TSC Indus., Inc. v. Northway, Inc.,                            ___  ____   ________________    ______________          426 U.S.  438, 450 (1976); In  re Varasso, 37 F.3d  760, 763 (1st                                     ______________          Cir.  1994).  In those  cases, endorsement becomes  a question of          fact.  This case is of the latter type.                                          14          made its  employees aware of the opportunity  to obtain coverage,          but  had stopped short of  endorsing the program.   CIGNA drafted          the  policy and,  presumably,  set the  premium rates.   Although          Watts  distributed the sales brochure, waiver-of-insurance cards,          and enrollment cards, those efforts were undertaken to help CIGNA          publicize the program; the documents themselves were prepared and          printed  by CIGNA, and delivered by it to Watts for distribution.          Watts recommended enrollment via a cover letter (reproduced as an          appendix hereto)  written on  the letterhead of  Watts Industries          and signed by  its vice-president for  financial matters.   CIGNA          typeset the letter and incorporated it into the cover page of the          brochure.   The letter explicitly informed  Watts' employees that          the enrollment  decision  was  theirs to  make.    Watts  nowhere          suggested that it had any  control over, or proprietary  interest          in,  the group  insurance  program.   And,  finally, neither  the          letter nor any other passage in the brochure mentioned ERISA.                    The  district   court   also  examined   Watts'   other          activities concerning  the  program.   Watts  collected  premiums          through  payroll  deductions,  remitted  the  premiums  to CIGNA,          issued   certificates  to   enrolled  employees   confirming  the          commencement of  coverage, maintained  a list of  insured persons          for  its own records, and  assisted CIGNA in securing appropriate          documentation when claims eventuated.   Watts' activities in this          respect consisted principally of filling out the employer portion          of  the claim form,  inserting statistical information maintained          in Watts' personnel  files (such as the insured's  name, address,                                          15          age,  classification, and  date  of hire),  making various  forms          available to  employees (e.g.,  claim forms),4 and  keeping track          of  employee eligibility.   Watts would follow  up on  a claim to          determine  its status, if CIGNA  requested that Watts  do so, and          would occasionally answer a broker's questions about a claim.  In          sum, Watts  performed only  administrative  tasks, eschewing  any          role in the substantive aspects of  program design and operation.          It had no  hand in drafting the plan, working  out its structural          components,  determining  eligibility for  coverage, interpreting          policy  language, investigating, allowing and disallowing claims,          handling litigation, or negotiating settlements.                    In  the last  analysis, the  district court  found that          Watts' cover  letter fell  short of constituting  an endorsement.          The  court pointed out that  neither the letter  nor the brochure          expressly stated that the  employer endorsed the program.   Apart          from the letter,  the court  concluded that  Watts had  performed          only ministerial activities,  and that these activities  (whether          viewed alone or  in conjunction  with the cover  letter) did  not          rise to the level of an endorsement.                    We believe that  this finding deserves  our allegiance.          Drawing permissible inferences from the evidence, the trial court          could  plausibly  conclude  on   this  scumbled  record  that  an          objectively reasonable employee would not have thought that Watts          endorsed  the  group insurance  program.   Several considerations                                        ____________________               4CIGNA prepared  and  printed all  such  forms, and  sent  a          supply of forms to Watts.                                          16          lead us in this direction.  We offer a representative sampling.                    First, we think that  endorsement of a program requires          more  than  merely  recommending  it.    An  employer's  publicly          expressed opinion as to  the quality, utility and/or value  of an          insurance  plan, without  more,  while relevant  to (and  perhaps          probative of) endorsement, will  most often not indicate employer          control of the plan.   Second, the administrative  functions that          Watts   undertook   fit   comfortably   within   the  Secretary's          regulation.  Activities such  as issuing certificates of coverage          and  maintaining a list of  enrollees are plainly  ancillary to a          permitted function (implementing payroll deductions).  Activities          such  as answering brokers' questions similarly  can be viewed as          assisting the insurer  in publicizing the plan.  Other activities          that  arguably fall closer  to the line, such  as the tracking of          eligibility   status,   are   completely  compatible   with   the          regulation's aims.   Under the circumstances,  the court lawfully          could  find that the employer's activities, in the aggregate, did          not take the case out of  the safe harbor.5  See, e.g., Brundage-                                                       ___  ____  _________                                        ____________________               5Appellants stress the fact that Watts unilaterally prepared          and filed a Form 5500 with the Internal Revenue Service.  This is          an  example of the mountain laboring, but bringing forth a mouse.          Such forms are informational in nature and are designed to comply          with  various reporting  requirements  that ERISA  imposes.   See                                                                        ___          Cooke,  supra,   3.10, at  3-34.   But, there  is no  evidence to                  _____          suggest that Watts' employees knew of this protective filing, and          it  is surpassingly  difficult for  us to  fathom how  the filing          makes  a dispositive  difference.   Although  the inference  that          compiling the tax form  demonstrated Watts' intent to provide  an          ERISA  plan does not  escape us, but  cf. Kanne, 867  F.2d at 493                                           ___  ___ _____          (explaining  that a brochure describing  a plan as  an ERISA plan          evidences the intent of the employer to create an ERISA plan, but          the same may  not be said of the  filing of a tax return),  it is          entirely  possible, as the plaintiff  suggests, that the form was                                          17          Peterson,  877   F.2d  at  510  (assuming  that   steps  such  as          ________          "distributing advertising brochures from insurance  providers, or          answering  questions  of its  employees concerning  insurance, or          even  deducting  the  insurance  premiums  from   its  employees'          paychecks and  remitting  them to  the  insurers," do  not  force          employers out of the  safe harbor provision); du Mortier,  805 F.                                                        __________          Supp.  at 821 (holding that activities such as maintaining a file          of informational materials, distributing  forms to employees, and          submitting completed forms  to the insurer, do  not transcend the          boundaries of the safe harbor).                    In arguing  for reversal, appellants rely  on Hansen v.                                                                  ______          Continental  Ins. Co., a case that  involved a similar situation.          _____________________          In  Hansen, as here, participation in the plan was voluntary, and              ______          premiums were paid by  the employees via payroll deduction.   See                                                                        ___          Hansen,  940 F.2d at 973.   The employer  collected the premiums,          ______          remitted them to the  insurer, and employed an  administrator who          accepted  claim forms and transmitted  them to the  carrier.  See                                                                        ___          id.  at 974.    In addition,  the  employees received  a  booklet          ___          embossed with  the employer's  corporate logo that  described the          plan and encouraged employee participation.  The court found that          the company had endorsed the plan.  See id.                                              ___ ___                    Despite the resemblances, there  are two critical facts          that distinguish Hansen  from the case at bar.   First, in Hansen                           ______                                    ______          the corporate logo was  embossed on the booklet itself,  see id.,                                                                   ___ ___                                        ____________________          filed merely as  a precaution.  In any event,  this case turns on          the employer's activities, not its intentions.                                          18          making  it  appear  that  the  employer  vouched  for  the entire          brochure (and for the  plan).  Here, however, only  Watts' letter          bore its  imprimatur.    Second,  and perhaps  more  cogent,  the          booklet  at issue in Hansen described the policy as the company's                               ______          plan, see id. ("our  plan"), while here, the letter  typeset onto                ___ ___          the booklet describes  the policy  as a plan  offered by  another          organization.6   Though the  appellants decry the  distinction as          merely  a matter  of semantics,  words  are often  significant in          determining legal  rights and  obligations.  See  generally Felix                                                       ___  _________          Frankfurter,  Some  Reflections on  the  Reading  of Statutes  29                        _______________________________________________          (1947)  ("Exactness  in the  use  of words  is the  basis  of all          serious thinking.").                    In the difference  between "our plan" and "a plan" lies          the  quintessential meaning of endorsement.  If a plan or program          is  the  employer's plan  or program,  the  safe harbor  does not          beckon.  See, e.g., Sorel v. CIGNA, 1994 WL 605726, at *2 (D.N.H.                   ___  ____  _____    _____          Nov.  1,  1994)  (holding  that statement  describing  policy  as          employer's  plan  on first  page  of  plan description  indicates          endorsement); Cockey  v. Life Ins.  Co. of  N. Am., 804  F. Supp.                        ______     _________________________          1571, 1575 (S.D. Ga. 1992) (finding that when employer presents a          program to its  employees as an integral part of its own benefits                                        ____________________               6There  may  also  be  a  critical  difference  between  our          approach to  the  question of  endorsement  and that  adopted  in          Hansen.  Although the  Hansen court did not articulate  its ratio          ______                 ______                               _____          decidendi, at least one district court has come to the conclusion          _________          that Hansen  analyzed the  situation from  the standpoint  of the               ______          employer  rather than the employee.  See Barrett v. Insurance Co.                                               ___ _______    _____________          of  N.  Am., 813  F.  Supp.  798, 800  (N.D.  Ala.  1993).   This          ___________          possibility  renders appellants'  reliance  on Hansen  even  more                                                         ______          problematic.                                          19          package, the safe harbor is unavailable); Shiffler, 663 F.  Supp.                                                    ________          at 161  (finding endorsement  because policy  had been  hawked to          employees  as a part of the company's benefits package); see also                                                                   ___ ____          Dep't of Labor Op.  No. 94-26A, supra (advising that  safe harbor                                          _____          is  unavailable  when  a  union, inter  alia,  describes  a group                                           _____  ____          insurance program as its  program).  When, however, the  employer          separates  itself from  the program,  making it  reasonably clear          that the program is a third  party's offering, not subject to the          employer's  control, then the safe harbor may be accessible.  See                                                                        ___          Hansen, 940 F.2d at 977; Kanne, 867 F.2d at 493;  Hensley, 878 F.          ______                   _____                    _______          Supp. at 1471.                    This  distinction is  sensible.   When  an  objectively          reasonable  employee reads  a  brochure describing  a program  as          belonging to his employer, he  is likely to conclude that, if  he          participates,  he will be dealing  with the employer  and that he          will therefore enjoy the  prophylaxis that ERISA ensures  in such          matters.  When the possessive pronoun is eliminated in favor of a          neutral article, however, the  employee's perception is much more          likely  to  be  that, if  he  participates,  he  will be  dealing          directly with  a third party    the  insurer   and  that he  will          therefore be beyond the scope of ERISA's protections.                    To sum up, we  are drawn to three conclusions.   First,          the district court did not clearly err in finding that Watts  had          not endorsed  the group insurance  program.  Second,  the court's          fact-sensitive determination  that  the program  fits within  the          parameters  of   the  Secretary's  safe   harbor  regulation   is                                          20          sustainable.   Third, since ERISA does not apply, the court below          did  not  blunder  in  scrutinizing  the  merits  of  plaintiff's          contract claim through the prism of state law.          III.  THE DISABILITY ISSUE          III.  THE DISABILITY ISSUE                    Appellant asseverates  that, even if  New Hampshire law          controls,  the judgment below is  insupportable.  We  turn now to          this asseveration.                    The  starting point  for  virtually any  claim under  a          policy of insurance is  the policy itself.  Here,  the applicable          rider promises benefits  to an insured who has been injured in an          accident,  whose ensuing disability  is "continuous"  and "total"          for  a year, and who thereafter  remains "permanently and totally          disabled."  The  rider defines "continuous total disability" as a          disability  resulting  from  injuries sustained  in  an accident,          "commencing within  180 days  after the  date  of the  accident,"          lasting for at least  a year, and producing during  that interval          "the  Insured's complete inability  to perform every  duty of his          occupation."                    If an insured meets this benchmark, he must then  prove          that  he is "permanently and totally disabled."  Under the policy          definitions,  this  phrase   signifies  "the  Insured's  complete          inability,  after one  year  of continuous  total disability,  to          engage in an occupation or employment for which [he] is fitted by          reason of education, training, or experience for the remainder of          his  life."   It  is against  this  linguistic backdrop  that  we          inspect  appellants'  assertion that  the  trial  court erred  in                                          21          finding plaintiff to be totally and permanently disabled.                               A.  Standard of Review.                               A.  Standard of Review.                                   __________________                    In actions  that are tried  to the  court, the  judge's          findings  of fact  are to  be honored  unless  clearly erroneous,          paying  due  respect  to  the judge's  right  to  draw reasonable          inferences  and  to  gauge the  credibility  of  witnesses.   See                                                                        ___          Cumpiano,  902  F.2d  at 152  (citing  Fed.  R.  Civ. P.  52(a));          ________          Reliance Steel Prods.  Co. v.  National Fire Ins.  Co., 880  F.2d          __________________________     _______________________          575, 576 (1st  Cir. 1989).   A corollary of  this proposition  is          that, when there are  two permissible views of the  evidence, the          factfinder's choice  between  them cannot  be clearly  erroneous.          See Anderson v. City of Bessemer City, 470 U.S. 564, 574  (1985);          ___ ________    _____________________          Cumpiano, 902 F.2d at 152.  In fine, when a case has been decided          ________          on the facts by  a judge sitting jury-waived, an  appellate court          must refrain  from any  temptation to  retry  the factual  issues          anew.                    There  are, of  course, exceptions  to  the rule.   For          example, de novo  review supplants clear-error review  if, and to          the  extent that, findings of  fact are predicated  on a mistaken          view of  the law.  See,  e.g., United States v.  Singer Mfg. Co.,                             ___   ____  _____________     _______________          374  U.S. 174,  195 n.9  (1963); RCI  N.E. Servs. Div.  v. Boston                                           _____________________     ______          Edison Co., 822  F.2d 199, 203  (1st Cir. 1987).   This does  not          __________          mean, however, that the clearly erroneous standard  can be eluded          by the simple expedient  of creative relabelling.  See  Cumpiano,                                                             ___  ________          902 F.2d  at 154; Reliance Steel,  880 F.2d at 577.   For obvious                            ______________          reasons, we will not  allow a litigant to subvert  the mandate of                                          22          Rule 52(a) by hosting a masquerade, "dressing factual disputes in          `legal' costumery."  Reliance Steel, 880 F.2d at 577; accord Dopp                               ______________                   ______ ____          v.  Pritzker, 38 F.3d 1239,  1245 (1st Cir.  1994), cert. denied,              ________                                        _____ ______          115 S. Ct. 1959 (1995).                                    B.  Analysis.                                    B.  Analysis.                                        ________                    Appellants   make  two  main  arguments  in  regard  to          plaintiff's  disability claim.  First, in an effort to skirt Rule          52(a),  they assert that the district court committed an error of          law, mistaking the meaning of the phrase "permanently and totally          disabled" as  that phrase is used  in the policy.   We reject the          assertion as  comprising nothing  more than  a clumsy  attempt to          recast a  clear-error challenge  as an issue  of law  in hope  of          securing  a more welcoming standard of review.  The policy itself          defines  the operative term,  and the record  makes pellucid that          the district judge applied the term within the parameters of that          definition.                    Appellants' second contention posits that  the district          court  misperceived  the  facts,   and  that  plaintiff  was  not          sufficiently  disabled to  merit  an  award  of benefits.    This          contention also  lacks force.   The  district court  had adequate          grounds for  deciding that plaintiff was  totally and permanently          disabled.    The  evidence  showed  that  plaintiff  sustained  a          devastating brain injury, and that, throughout the year following          his accident, a number  of physicians found his disability  to be          continuous.  By and large, plaintiff's  condition did not improve          significantly during that year  (or thereafter, for that matter).                                          23          Without  exception, the  doctors  concluded that  he could  never          return to  work as a forklift driver.  To cap matters, the record          contains  ample  evidence  that  the plaintiff's  disability  was          permanent  and blanketed  the  universe of  occupations to  which          plaintiff   a laborer  with a high-school education    might have          aspired.                    We  need not  cite  book and  verse.   The  court  made          detailed findings, crediting the  conclusions of four doctors who          judged  plaintiff  to be  severely  impaired,  both mentally  and          physically.7  The court also credited an evaluation performed  by          Sherri  Krasner,  a  speech  and language  pathologist,  and  the          testimony  of  a   vocational  rehabilitation  counselor,  Arthur          Kaufman, who offered an opinion that plaintiff was unable to work          without  constant supervision.   Kaufman stated  that he  did not          know  of a job suitable  for a person  in plaintiff's condition.8                                        ____________________               7These  experts   included  the  attending   physician  (Dr.          Martino),    a   neurologist    (Dr.   Whitlock),    a   clinical          neuropsychologist (Dr. Higgins), and  a psychologist (Dr.  Toye).          A  fifth  physician,  Dr.  Michele  Gaier-Rush,   also  evaluated          plaintiff.   CIGNA chose  Dr. Gaier-Rush as  its medical examiner          but neglected to  provide her with  any of plaintiff's  plentiful          prior medical records, despite their availability.  She concluded          that  plaintiff could not perform his usual job but could perform          a job  "requiring more  mental capacity than  physical capacity."          She noted, however, that plaintiff had no formal  training beyond          high school,  and  conceded  that  "[t]his  will  probably  be  a          permanent  disability as  there  does not  seem  to have  been  a          significant  improvement in  the past  year."   Consequently, she          found it doubtful that plaintiff could ever work again.               8While  Kaufman did say that  plaintiff might be  able to do          some gainful  employment with  "excessive supervision," and  that          plaintiff, like  other  patients with  traumatic brain  injuries,          would  probably benefit  from vocational  rehabilitation, Kaufman          expressed   doubt  that   plaintiff   would  ever   overcome  his          impairment.   In short, he lacked  the "capacity to retain  . . .                                          24          On  this record,  the trial court's  total disability  finding is          unimpugnable.                    Another wave of  appellants' evidentiary attack targets          the  district  court's  finding  that  plaintiff's disability  is          permanent.    In  this  respect, appellants  rely  mainly  on the          physicians'   recommendations   for  rehabilitative   therapy  as          indicative of the  potential for recovery.   The district  court,          however, found appellants' inference unreasonable in light of the          dim  prospects   for  significant   recovery,  the   duration  of          plaintiff's  inability  to  work,  and the  policy's  failure  to          require  vocational  rehabilitation  as  a  precondition  to  the          receipt of  benefits.  These  are fact-dominated issues,  and the          trial court is in  the best position to calibrate  the decisional          scales.   See Cumpiano,  902 F.2d  at 152.   Having  examined the                    ___ ________          record with care, we have no reason to suspect that a mistake was          committed.  See, e.g., Duhaime v. Insurance Co., 86 N.H. 307, 308                      ___  ____  _______    _____________          (1933) (explaining  that, to be permanently  disabled, an insured          need not be in a condition of "utter hopelessness").          IV.  CONCLUSION          IV.  CONCLUSION                    We need go  no further.   ERISA does not  apply to  the          group insurance  program at issue  here.  Moreover,  the district          court's    factual    findings   survive    clear-error   review.          Consequently, the court's resolution of the case stands.                                        ____________________          employment."                                          25          Affirmed.          Affirmed.          ________                                          26
