                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE FIFTH CIRCUIT



                                     No. 02-20692
                                   Summary Calendar



      MARGARET TRAYHAM HOGAN,

                                                       Plaintiff-Appellant,

                                          versus

      NATIONSBANK INSURANCE COMPANY,
      INCORPORATED; NATIONSBANK OF
      NORTH CAROLINA, N.A., TRUSTEE,

                                                       Defendants-Appellees.


                  Appeal from the United States District Court for
                           the Southern District of Texas
                            (USDC No. H-01-CV-1763)
          _______________________________________________________
                                  January 3, 2003


Before REAVLEY, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:*

      We affirm for the following reasons:




      *
        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not be published and is not precedent except under the limited circumstances set forth in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.
       1. Kenneth Hogan died from medical treatment of his infection. The plan

document states that accidental death benefits are not paid for a death resulting “directly

or indirectly from . . . [d]isease or bodily or mental infirmity or by medical or surgical

treatment thereof or by any infection (except only septic infection of and through a

visible wound accidentally sustained).” This case is governed by the Employee

Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461 (ERISA). The plan

administrator did not abuse its discretion in interpreting the plan to exclude benefits in

this case and denying the claim.

       2. Appellant’s only colorable arguments are that the summary plan description

(SPD) either conflicts with the plan document and should control, or that the SPD is

ambiguous and the ambiguity should be resolved in her favor. The SPD states that the

plan does not cover “loss resulting from . . . [i]llness, disease, pregnancy, childbirth.”

       3. On the question of a conflict, we have recognized that “if there is a conflict

between the SPD and the terms of the plan itself, the SPD controls.” McCall v.

Burlington Northern/Santa Fe Co., 237 F.3d 506, 512 (5th Cir. 2000), cert. denied, 122 S.

Ct. 57 (2001). Accord Hansen v. Continental Ins. Co., 940 F.2d 971, 982 (5th Cir. 1991).

While our court may not have set out the precise contours of what constitutes a “conflict”

in this area, compare Rhorer v. Raytheon Eng’rs & Constructors, Inc., 181 F.3d 634, 642

(5th Cir. 1999) (rejecting “argument that Hansen is only controlling in cases where there

is a positive conflict between the summary plan description and the policy”), with Wise

v. El Paso Natural Gas Co., 986 F.2d 929, 938 (5th Cir. 1993) (stating that “[w]hile clear

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and unambiguous statements in the summary plan description are binding, the same is not

true of silence”), we simply see no conflict—direct, indirect, positive, or by

omission—between the SPD and the plan. Both exclude coverage for deaths resulting

from disease, and neither contain language stating or suggesting that death from medical

treatment of disease is covered.

       4. The closer question is whether the SPD is nevertheless ambiguous as to

whether a death caused by the medical treatment of disease or illness is a death “resulting

from” disease or illness. We think not. We recognize that the plan document, which

plainly states that death from the medical treatment of disease or infirmity is not covered,

cannot be used to resolve an ambiguity in the SPD. Fallo v. Piccadilly Cafeterias, Inc.,

141 F.3d 580, 583 (5th Cir. 1998) (“We have rejected the notion that the SPD should be

interpreted in the light of the language of the Plan.”); Hansen, 940 F.2d at 981. However,

in light of the unique body of ERISA law and the function of the SPD, we do not believe

that an ambiguity should be found in every case where the SPD does not address the

precise coverage question presented.

       The Court understands that ERISA’s requirement of a summary plan
       description necessarily requires abbreviation or omission of some of the
       detail of the plan or policy. Indeed, the very idea of the summary is to
       provide an accurate, but abbreviated, description of the plan provisions; its
       purpose is to simplify and explain the policy. Thus, it is not inappropriate
       to refer to the plan or policy itself to fill in details, or to provide other
       incidental information not included in the summary.

Hansen, 940 F.2d at 982-83 n.8.



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       In light of these congressional imperatives and common industry practices,
       we should not (and will not) penalize the Plan, or other similar ERISA
       plans for that matter, for lack of technical precision or verbosity by labeling
       the Plan “silent” or “ambiguous” when it uses the kind of direct, jargon-free
       language that is mandated by ERISA for all summary plan descriptions and
       does not expressly address every conceivable factual variation of recovery .
       ...

Sunbeam-Oster Co. Group Benefits Plan v. Whitehurst, 102 F.3d 1368, 1375 (5th Cir.

1996). “That judges and lawyers, who by education and experience are primed to

discover ambiguity in contract language, might find gaps or contradictions in a summary

plan description’s ordinary, conversational language does not mean that the language is

necessarily ambiguous or silent to the point of default for ERISA purposes.” Id. at 1376.

In the pending case, the language of the SPD is not in our view sufficiently uncertain to

compel us to hold that it is ambiguous and that Hogan should therefore receive benefits,

despite the language in the primary plan document which unambiguously provides that

death resulting from medical treatment of disease or infirmity is not covered.

       AFFIRMED.




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