                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                   UNITED STATES COURT OF APPEALS           December 10, 2003
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-40113
                          Summary Calendar


                ROBERT TATUM; VIRGINIA RENEE TATUM,

                                              Plaintiffs-Appellants,

                               versus

         SPECIAL INSURANCE SERVICES; JOE HILL & ASSOCIATES;
                          DENISE M. HODGES,

                                              Defendants-Appellees.


            Appeal from the United States District Court
                  for the Eastern District of Texas
                            (9:01-CV-261)


Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Robert Tatum (Tatum) and Viginia Renee Tatum appeal the

summary judgment awarded defendants against their action seeking

benefits under the employee insurance policy purchased by Tatum’s

employer, Turner Wood Products (TWP), which was administered by

Special Insurance Services (SIS).       The Tatums contend that the

policy did not constitute a “plan” for purposes of the Employee

Retirement Income Security Act (ERISA); and that, if the policy is



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
an ERISA plan, SIS was liable for numerous technical violations of

ERISA and Tatum was entitled to benefits under the policy.

     There are three steps in the analysis for whether an insurance

policy purchased by an employer is subject to ERISA.                   See Hansen v.

Continental Ins. Co., 940 F.2d 971, 975-78 (5th Cir. 1991).

     The first step is inquiring into whether the plan falls under

the safe harbor regulations.        Id. at 976-77.            TWP paid the premium

for the policy.      The policy therefore fell outside the scope of the

safe harbor exempting certain group benefit programs from ERISA’s

provisions.    Id.

     The second step is inquiring into whether there is a “plan”.

Id. at 977.   In this case, a reasonable person could ascertain from

the policy its intended benefits, its class of beneficiaries, its

source of financing, and its procedures for receiving benefits.

The policy therefore was a “plan”.              Id.

     The final step is inquiring into whether the plan is an ERISA

plan; it is if the employer is involved in administering the plan

and if the employer has the purpose of benefitting its employees.

Id. at 977-78.    Here, there is no dispute that TWP was involved in

administering the plan and intended to benefit its employees.

Therefore,    there    is   an   ERISA   plan;        and   summary    judgment   was

properly awarded against Tatums’ preempted state law claims.

     The   Tatums     contend     that       SIS   was      liable    for   technical

violations of ERISA.        These claims were not presented in district

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court so we will not consider them.       E.g., Vogel v. Veneman, 276

F.3d 729, 733 (5th Cir. 2002).

     The Tatums moved the district court to permit them to amend

their complaint to make such contentions; but, they do not contend

here that the district court erred by implicitly denying their

motion.   They have abandoned that issue for appeal.      E.g., In re

Municipal Bond Reporting Antitrust Litigation, 672 F.2d 436, 439

n.6 (5th Cir. 1982).

     TWP’s policy provided that the single limit benefit period was

52 weeks; that the policy would reimburse the cost of covered

charges; and that it would pay covered charges that were incurred

within one year of the date of an accident.        The policy did not

provide for any procedure requiring SIS to preauthorize payments or

services. Tatum’s January 2001 surgery occurred more than one year

after his 2 March 1999 accident.       Under the plain language of the

policy, Tatum was not entitled to benefits.

     The Tatums’ claim that the statements and conduct of SIS

employees altered the terms of the policy or otherwise entitled

Tatum to benefits amounts to a promissory estoppel claim.      “ERISA

disfavors generally arguments based on promissory estoppel or on

alleged modifications of plan documents that are not made via the

plan’s internal amendment process.”        Izzarelli v. Rexene Prods.

Co., 24 F.3d 1506, 1517 (5th Cir. 1994).      Oral modifications to an

employee welfare benefit plan governed by ERISA cannot form the


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basis     for   a       breach-of-contract        claim.         Williams      v.

Bridgestone/Firestone, Inc., 954 F.2d 1070, 1072 (5th Cir. 1992).

     As     discussed     above,   the       Tatums   have    abandoned     their

contentions based on the alleged failure of SIS to provide Tatum

with a summary plan description (SPD) or a copy of the policy

itself.   We therefore need not address the possible effect of any

non-provision of an SPD or copy of the policy on the Tatums’

estoppel argument.

     Even if the Tatums are correct that Tatum was required to

coordinate all of his care through a case manager and that his

telephone    calls   were   not    returned     after   his   visit   with   the

independent medical examiner, the Tatums are attempting to rely on

oral representations to modify the written terms of the policy.

Their estoppel claim is unavailing.

     The district court did not err in determining that there were

no genuine issues of material fact.               The summary judgment was

proper.   See Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc.,

168 F.3d 211, 213 (5th Cir. 1999).

                                                                   AFFIRMED




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