           _____________

           No. 94-2266ND
           _____________

Selma Fink; Craig Fink, as              *
Personal Representative of the          *
Estate of Stanley Fink; Young           *
America, Inc.,                          *
                                        *
                Appellants,             *
                                        *
     v.                                 *
                                        *
Union Central Life Insurance            *
Company; Jack Pankow,                   *
individually and as agent of            *
Union Central Life Insurance            *
Company,                                *
                                        *
                Appellees.              *

           _____________                    Appeals from the United States
                                            District Court for the District
           No. 94-3526ND                    of North Dakota.
           _____________

Selma Fink; Craig Fink, as          *
Personal Representative of the      *
Estate of Stanley Fink; Young       *
America, Inc.,                      *
                                    *
           Plaintiffs-Appellees,    *
                                    *
      v.                            *
                                    *
Union Central Life Insurance        *
Company;                            *
                                    *
           Defendant-Appellant,     *
                                    *
Jack Pankow, individually and       *
as agent of the Union Central       *
Life Insurance Company,             *
                                    *
           Defendant.               *
                              _____________

                           Submitted:   May 17, 1996

                            Filed: August 29, 1996
                                _____________
Before RICHARD S. ARNOLD, Chief Judge, and JOHN R. GIBSON and FAGG,
      Circuit Judges.
                              _____________


FAGG, Circuit Judge.


        Jack Pankow, an insurance agent, sold Young America, Inc. (Young
America) a Manhattan Life Insurance Company (Manhattan Life) group life
insurance policy that provided coverage for certain Young America officers
and employees.        The group policy was an employee benefit plan governed by
the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461
(1994), and Young America was the plan administrator.                        Young America's
Chief Executive Officer, Stanley Fink, had $300,000 of coverage under the
policy.    Stanley named his wife Selma as the beneficiary.                   Manhattan Life
later     transferred      the    policy   to   Union    Central,    which     cancelled   the
Manhattan Life policy and issued Young America a similar policy written by
Union Central.        In March 1991, when Stanley was approaching the maximum age
of eligibility for the group policy, Stanley's son Craig telephoned Union
Central to discuss converting Stanley's coverage into an individual policy.
A Union Central employee informed Craig that Stanley would be covered under
the group policy until June 1, 1991.              After Stanley died on May 15, 1991,
Union Central rejected Selma's claim for the $300,000 death benefit,
claiming Stanley had not been eligible to participate in the group policy
at the time of his death because he was not an active, full-time employee
of   Young      America.         Young   America,     Selma,   and    Craig,    as   personal
representative of Stanley's estate (collectively the Finks), then brought
various claims against Union Central and Pankow.                      The district court
granted summary judgment for Union Central on the Finks' claims for
wrongful denial of ERISA benefits, equitable estoppel, and breach of
fiduciary duty.         The district court also granted summary judgment for
Pankow     on   the    Finks'     claims   against      him   for   misrepresentation      and
intentional and negligent infliction of




                                                -2-
emotional distress.    The Finks appeal the grant of summary judgment on all
these claims.   Also, the district court denied Union Central's application
for attorney's fees and costs under 29 U.S.C. § 1132 (g)(1), and Union
Central cross-appeals the denial of its application.      We affirm.


     The Finks first contend the district court improperly granted summary
judgment on their claim for wrongful denial of pension benefits, see 29
U.S.C. § 1132(a)(1)(B), because the record shows there are material fact
disputes about whether Stanley met the policy requirement of active, full-
time employment and was eligible for coverage.    We disagree.    When an ERISA
plan fiduciary, like Union Central, has authority to determine eligibility
for an ERISA benefit plan or to interpret plan terms, the fiduciary's
refusal to pay benefits under the plan is reviewed for an abuse of
discretion.     Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989).    The district court reviewed Union Central's decision under the
abuse-of-discretion standard, and the Finks do not dispute that standard
of review on appeal.   Union Central did not abuse its discretion unless its
refusal to pay benefits was "`extraordinarily imprudent or extremely
unreasonable.'"   Lickteig v. Business Men's Assurance Co. of Am., 61 F.3d
579, 583 (8th Cir. 1995) (quoted case omitted).       Having considered the
record de novo, we agree with the district court that Union Central did not
abuse its discretion in denying benefits for Stanley.            Id. (court of
appeals reviews district court's application of deferential standard de
novo).


     Union Central thoroughly investigated Selma's claim for benefits and
discovered overwhelming evidence that Stanley was not an active, full-time
employee at the time of his death.         To qualify as "active" under the
policy's terms, an employee must work at the employer's regular place of
employment or at some other place where the regular business operations of
the employer require that employee to go.        Union Central learned that
Stanley spent most of the year in Arizona, not at Young America's regular
place of




                                     -3-
business in North Dakota, and the Finks presented no evidence that Young
America asked Stanley to go to Arizona for business reasons.            Further, the
policy provides that employees must be scheduled to work at least thirty
hours a week and must be on the employer's regular payroll to be "full-
time."     Stanley, however, led a semi-retired lifestyle.               His primary
contacts with Young America were summer visits to the North Dakota offices
and frequent phone calls to his sons, the corporation's active managers.
Union Central also obtained tax records showing Stanley's salary dropped
sharply after 1988 and he began receiving social security payments.
Despite being given an opportunity to respond to Union Central's concerns,
the Finks did not provide Union Central with evidence showing Stanley
regularly worked thirty hours a week and was on Young America's regular
payroll   for   that   work.     Although    Stanley   was   still    considered   the
corporation's Chief Executive Officer, the group policy specifically
provides that corporate officers are not eligible for coverage solely due
to their titles, but must be active, full-time employees.            Considering the
information available to Union Central when it denied Selma's claim for
benefits, see Ravenscraft v. Hy-Vee Employee Benefit Plan & Trust, 85 F.3d
398, 402 (8th Cir. 1996), Union Central's denial was not an abuse of
discretion.


     The Finks next contend that even if the denial of benefits was
consistent with the policy's terms, Union Central should be estopped from
denying   benefits     because   Union   Central   misled    them    about   Stanley's
eligibility.    The Finks argue that before Union Central rewrote the policy,
it informed Young America that eligibility requirements would remain the
same as in the Manhattan Life policy, but Union Central in fact added the
requirement that corporate officers must be active, full-time employees.
The Finks also assert the Union Central employee Craig Fink spoke to on the
telephone misled Craig by telling him Stanley would be insured under the
group policy until June 1, 1996.         The Finks' estoppel claims fail because
common-law estoppel principles cannot be used




                                          -4-
to obtain ERISA benefits that are not payable under the terms of the ERISA
plan.    See Jensen v. SIPCO, Inc., 38 F.3d 945, 953 (8th Cir. 1994), cert.
denied, 115 S. Ct. 1428 (1995).       Courts may apply the doctrine of estoppel
in ERISA cases only to interpret ambiguous plan terms, and the Finks do not
argue the eligibility requirements are ambiguous.         Slice v. Sons of Norway,
34 F.3d 630, 634-35 (8th Cir. 1994).       Unlike the Finks, we do not think the
availability of estoppel principles in ERISA cases depends on whether the
benefit plan's financial soundness would be affected by ordering the
payment of benefits.      See id. at 633-34.


        We also reject the Finks' claim that Union Central breached its
fiduciary duties by failing to train Young America, the plan administrator;
by   accepting premium payments on Stanley's behalf without verifying
Stanley's eligibility; and by failing to provide Craig Fink with complete
information about Stanley's status when Craig called Union Central.               First,
Union Central had no duty to train or supervise Young America because Union
Central    did   not   have   the   authority   to   select   or   remove   the    plan
administrator.     Leigh v. Engle, 727 F.2d 113, 135 (7th Cir. 1984);               see
American Fed'n of Unions Local 102 Health & Welfare Fund v. Equitable Life
Assurance Soc'y of the United States, 841 F.2d 658, 665 (5th Cir. 1988).
Second, the undisputed evidence shows Young America was responsible for
determining employee eligibility and updating Union Central about which
employees were covered by the group policy.             See 29 U.S.C. § 1105(c)
(allowing co-fiduciaries to divide fiduciary duties and liability).               Young
America represented to Union Central that Stanley was eligible, and Union
Central had no reason to think otherwise.            Although Craig testified he
called Union Central because Stanley was about to turn seventy and planned
to retire, the Finks presented no evidence Craig informed Union Central
that Stanley had already moved to Arizona and scaled back his work hours.
What the Union Central employee told Craig was true and complete based on
the information available to Union Central. Cf. Eddy v. Colonial Life Ins.
Co. of Am., 919 F.2d 747, 751 & n.3




                                         -5-
(D.C. Cir. 1990) (insurer had duty to inform plaintiff about conversion
rights because plaintiff told insurer his coverage under group policy was
ending).   In short, the Finks' assertions are insufficient to show a breach
of fiduciary duty.


     We now turn to the Finks' misrepresentation and infliction of
emotional distress claims against Pankow.         The district court concluded the
Finks' state common-law claims against Pankow were preempted by 29 U.S.C.
§ 1144(a) because the claims related to the group insurance plan.             See
Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138-39 (1990).            The Finks
argue their state law claims affect the insurance plan in too tenuous,
remote, or peripheral a manner to be preempted, because the claims are
based on misrepresentations Pankow made during the sale of the Manhattan
Life policy to Young America, before Young America began administering the
policy for its employees.      See Consolidated Beef Indus., Inc. v. New York
Life Ins. Co., 949 F.2d 960, 963 (8th Cir. 1991), cert. denied, 503 U.S.
985 (1992).      We think the claims are probably preempted, see id. at 964,
but summary judgment would be proper anyway because there is no evidence
Pankow acted wrongfully during the sale of the Manhattan Life policy.           It
is the Finks' position that Stanley was covered under the Manhattan Life
policy,    and    Union   Central   added   the   active,   full-time   employment
requirement for officers.     Pankow presented undisputed evidence that he did
not even know the group policy was transferred to Union Central until about
two years after the transfer.        We conclude the Finks have not presented
evidence to show Pankow made misrepresentations about the policy or caused
the Finks emotional distress.


     The district court also treated the Finks' misrepresentation and
infliction of emotional distress claims against Pankow as ERISA claims for
breach of fiduciary duty.     See Slice v. Sons of Norway, 978 F.2d 1045, 1046
(8th Cir. 1992) (per curiam) (when ERISA preempts state law claims, court
should consider whether claims




                                        -6-
state cause of action under ERISA or federal common law).        As the district
court correctly concluded, Pankow did not act in a fiduciary capacity
toward the Finks.    Individuals "who provide professional services to plan
administrators `are not ERISA fiduciaries unless they "transcend the normal
role" and exercise discretionary authority.'"      Kerns v. Benefit Trust Life
Ins. Co., 992 F.2d 214, 217-18 (8th Cir. 1993) (quoting Martin v. Feilen,
965 F.2d 660, 669 (8th Cir. 1992), cert. denied, 506 U.S. 1054 (1993)).
Insurance   agents    can   become   fiduciaries   by    participating    in   the
administration of a benefit plan, managing the plan's assets, or providing
investment advice for compensation about the plan's money or property.         See
29 U.S.C. § 1002(21)(A) (defining fiduciary);      Olson v. E.F. Hutton & Co.,
957 F.2d 622, 626 (8th Cir. 1992).           According to the Finks, Pankow
understood their insurance needs and recommended the Manhattan Life policy
as the one Young America should purchase, and Pankow helped Selma apply for
Stanley's death benefit.     These assertions are not enough to show Pankow
crossed   the line between insurance broker and fiduciary.               Like the
insurance agent in Consolidated Beef Industries, Pankow was not involved
in plan administration or investments, but "was merely a salesperson
earning commissions and not a fiduciary under ERISA."          949 F.2d at 965.
As a nonfiduciary, Pankow is not liable for damages under ERISA, and the
Finks' complaint requests only a damages award.         Firstier Bank v. Zeller,
16 F.3d 907, 914 (8th Cir.), cert. denied, 115 S. Ct. 194 (1994).


     Although the Finks make a passing reference to federal common law in
their appellate brief, they do not develop an argument that federal common
law provides them a cause of action against Pankow.        At any rate, we would
not use federal common law to allow a damages claim against a nonfiduciary
because ERISA's carefully drafted enforcement provisions "provide strong
evidence that Congress did not intend to authorize other remedies that it
simply forgot to incorporate expressly."     Massachusetts Mut. Life Ins. Co.
v. Russell, 473 U.S. 134, 146 (1985).       Federal common law may be used




                                      -7-
to fill gaps in ERISA, Anderson v. John Morrell & Co., 830 F.2d 872, 877
(8th Cir. 1987), but not to upset Congress's policy choices.


        Turning to Union Central's cross-appeal, we conclude the district
court did not abuse its discretion in denying Union Central's application
under    29   U.S.C.    §   1132(g)(1)   for    attorney's       fees   and   costs.     See
Consolidated Beef Indus., 949 F.2d at 966.                 Contrary to Union Central's
contention, the district court adequately considered the factors set out
in Lawrence v. Westerhaus, 749 F.2d 494, 495-96 (8th Cir. 1984) (per
curiam).


        Because the Finks' ERISA and state common-law claims fail as a matter
of law, summary judgment was proper, and the district court did not abuse
its   discretion       in   denying   Union    Central's    29   U.S.C.   §   1132     (g)(1)
application for fees and costs.           We affirm.


        A true copy.


              Attest:


                       CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                              -8-
