                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                           No. 00-30084


                          NATHAN PARKER

                                             Plaintiff - Appellant


                              VERSUS


   OWENS-ILLINOIS INC; OWENS-ILLINOIS HOURLY RETIREMENT PLAN;
           OWENS-ILLINOIS EMPLOYEE BENEFIT COMMITTEE;
       OWENS-ILLINOIS HOURLY EMPLOYEE WELFARE BENEFIT PLAN

                                              Defendants - Appellees




           Appeal from the United States District Court
               For the Eastern District of Louisiana
                          (98-CV-201-D)
                        September 28, 2001
Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

      This action arises from the denial of disability retirement

income benefits under a plan governed by the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461.   On

cross-motions for summary judgment, the district court determined


  *
   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opinion should not be published and is not precedent except under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
that the administrator’s interpretation of the plan was legally

correct, and therefore the denial of the plaintiff’s benefits claim

could not constitute an abuse of discretion. The court accordingly

granted summary judgment in favor of the defendants.                   Concluding

that the plaintiff is entitled to the benefits for which he

applied, we reverse the district court and remand for entry of

judgment in conformity with our opinion.

                     I.   Facts and Procedural History

      Owens-Illinois,      Inc.,    employed      Nathan   Parker     at   its   New

Orleans, Louisiana plant from 1961 until 1985.                  In December of

1984, Owens-Illinois ceased production at its New Orleans plant,

leaving only a skeleton crew on the premises.               Parker remained as

part of this crew and worked in the plant’s warehouse until July

24, 1985, when he suffered a disabling work-related injury.1                     As a

result    of   the   injury,     Parker       received   workers’   compensation

benefits, as well as Social Security disability payments and life

insurance disability benefits.



         Although    warehouse     operations      and   employment    continued,

Owens-Illinois closed the personnel office of the New Orleans plant



  1
   Owens-Illinois employed Mr. Parker as a forklift operator. His
warehouse duties also required him to operate a sweeping machine
known as a “retriever.” Mr. Parker was using this machine at the
time of his injury. It appears from the record that a steering
malfunction caused the “retriever” to fall, with Mr. Parker in it,
from a loading dock onto a railroad track.

                                          2
when it terminated production there in 1984.2        Consequently, at the

time Parker was injured, there was no one available at the plant to

provide him with the proper forms or to assist him in applying for

disability and retirement benefits.

      On   December   28,   1994,   over   nine   years   after   he   became

disabled, Parker applied to Aetna Life Insurance Company for

permanent and total disability (“PTD”) benefits under a group

policy insured by Aetna and provided to employees as part of the

Owens-Illinois Hourly Welfare Benefit Plan.         Aetna denied Parker’s

PTD claim because the Welfare Benefit Plan required that claims for

PTD benefits be filed with the insurance company within 12 months

after the employee stopped active work.

      In October of 1995, Parker filed a claim for disability

retirement income (“DRI”) benefits under the Owens-Illinois Hourly

Retirement Plan.      In 1983, Owens-Illinois provided its Retirement

Plan participants, including Mr. Parker, with a Summary Plan

Description (“SPD”) that explained the eligibility criteria for DRI

benefits.    This booklet informed Mr. Parker as follows:

  2
   Parker asserts that Owens-Illinois customarily filed claims for
permanent and total disability benefits on behalf of injured
workers, but failed do so in his case because of the plant closure.
Owens-Illinois responds that the initiation of benefit claims for
injured employees was never standard practice.        Despite this
disagreement, it is clear that Parker did not have access to the
resources that would have been available to him had he been injured
when the plant was fully functional. The Summary Plan Description
of the Owens-Illinois Hourly Welfare Benefit Plan and the Owens-
Illinois Hourly Retirement Plan states that the forms necessary to
file the respective claims for benefits “are available in your
Personnel Department.”

                                     3
     You are eligible for disability [retirement] income
     benefits if you have had ten or more years of credited
     service and become permanently and totally disabled. You
     will be considered permanently and totally disabled for
     the purposes of this benefit if the insurance company
     approves your claim for permanent and total disability
     benefits under the Group Insurance Program.

                                  * * *

     In order to file a claim for Disability Retirement Income
     Benefits you must first submit a claim for permanent and
     total disability benefits under the Hourly Employees
     Group Insurance Program.      You must also complete an
     application for retirement benefits.     These forms are
     available in your Personnel Department.

The applicable written plan document, entitled the “Third Amended

and Restated Owens-Illinois Hourly Retirement Plan,” which was in

effect in 1985 when Mr. Parker was injured, stated at § 7.03:

     In any case of retirement on account of permanent and
     total disability, [1] evidenced by the award of benefits
     for permanent and total disability under any group
     insurance policy provided and administered by an
     Employer, if such benefits are provided by any such
     policy, or [2] evidenced by proof satisfactory to the
     Committee, if such benefits are not provided by any such
     policy, . . . the Committee shall direct the Trustee to
     pay . . . a monthly disability retirement benefit. . . .

     Because the insurance company (Aetna) did not “approve” his

prior claim for PTD benefits, the Owens-Illinois retirement manager

found that the terms of the SPD rendered Parker ineligible for

disability retirement benefits.      Furthermore, after review of the

Retirement Plan itself, and § 7.03 in particular, the manager

concluded   that   since   PTD   benefits   were   provided   by   a   group

insurance policy, an award of those benefits by the insurer was an

absolute prerequisite to Parker’s receipt of DRI benefits.             Citing


                                    4
a conflict between the SPD and § 7.03 of the plan, Parker appealed

this denial of his claim to the Retirement Plan Administrator, the

Owens-Illinois Employee Benefits Committee.             The Committee upheld

the denial, and this lawsuit followed.

      In his petition,3 Parker challenged the denial of DRI benefits

by asserting that the administrator erroneously interpreted the

Retirement Plan and the SPD, and that the denial of his claim was

arbitrary and capricious. After full discovery, the district court

considered cross-motions for summary judgment. Concluding that the

administrator’s interpretation of the SPD and the plan was legally

correct, the court granted summary judgment to the defendants.

Parker appeals from that judgment and from the denial of his cross-

motion for summary judgment.

      The central issue presented by this appeal is whether Parker

is legally entitled to disability retirement income benefits.

Parker recognizes that approval for PTD benefits by the group

insurer would automatically entitle a claimant to DRI benefits

under the express terms of the Retirement Plan.               Although he does

not contest Aetna’s denial of his PTD claim as untimely, he

nevertheless maintains that the SPD permits him to establish

permanent   and   total   disability       in   his   DRI   claim   through   the




  3
   Parker commenced this action in Louisiana state court. The
defendants subsequently removed the case to the United States
District Court for the Eastern District of Louisiana.

                                       5
“ancillary proof” he submitted to the district court.4            We agree.

                              II. Discussion

                        A.    Standard of Review

      We   review   summary   judgment   de   novo,   employing   the   same

standards used by the district court.         Meditrust Fin. Servs. Corp.

v. Sterling Chems., Inc., 168 F.3d 211, 213 (5th Cir. 1999).

Summary judgment is appropriate when, viewing the evidence in the

light most favorable to the nonmoving party, no genuine issue of

material fact exists, and the moving party is entitled to judgment

as a matter of law.    Celotex Corp. v. Catrett, 477 U.S. 317, 322-24

(1986); FED. R. CIV. P. 56(c).

      When an ERISA plan gives its administrator the discretionary

authority to determine eligibility for benefits or to construe the

terms of the plan, as it does here,5 courts accord deference to the


  4
   Parker submitted the following items as proof of his permanent
and total disability: his own affidavit; a Social Security
Administration decision dated August 31, 1988, finding Parker
permanently and totally disabled as of July 24, 1985, the date of
his accident at work; a Joint Petition to Compromise a Worker’s
Compensation Claim and Order Approving Worker’s Compensation
Settlement, dated January 10, 1992; a June 16, 1993 correspondence
from the Glass, Molders, Pottery, Plastics & Allied Workers
International Union evidencing the issuance of a life insurance
policy on the basis of Parker’s permanent and total disability; and
an Aetna Attending Physician’s Statement, completed by Parker’s
doctor, that confirms Parker’s disability status. The defendants
offered no evidence to dispute Parker’s claim of permanent and
total disability.
  5
   The Retirement Plan states at § 10.05 that “the Committee shall
have full power and authority . . . to make fair, equitable and
nondiscriminatory rulings and decisions . . . on any question
concerning the construction or interpretation of the Agreement and

                                    6
administrator’s       interpretation        and    review      it   for    abuse   of

discretion.       See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989).       See also Abraham v. Exxon Corp., 85 F.3d 1126,

1131 (5th Cir. 1996); Duhon v. Texaco, Inc., 15 F.3d 1302, 1305-06

(5th Cir. 1994).6      “‘In applying the abuse of discretion standard,

we analyze whether the plan administrator acted arbitrarily or

capriciously.’” Meditrust, 168 F.3d at 214 (citation omitted). In

this Circuit, our inquiry proceeds in two parts.                    First, we must

determine whether the administrator’s interpretation is legally

correct.    In deciding this question, we consider: (1) whether the

administrator has given the plan a uniform construction; (2)

whether the interpretation is consistent with a fair reading of the

plan; and     (3)    whether   there   will       be   any    unanticipated      costs

resulting from different interpretations of the plan.                     Wildbur v.

ARCO Chem. Co., 974 F.2d 631, 637-38 (5th Cir. 1992).                     The inquiry

ends   if   the     interpretation     is    legally         correct   because     the

administrator could not have abused its discretion in reaching the

proper result.      See Spacek v. Maritime Ass’n, 134 F.3d 283, 292-93

(5th Cir. 1998).      But if the interpretation is legally incorrect,


the Plan.”
  6
   We also review the factual determinations of the plan
administrator under the abuse of discretion standard. Meditrust
Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 213 (5th
Cir. 1999).     It is undisputed that the Employee Benefits
Committee’s factual findings were correct:          Owens-Illinois
maintained a group insurance policy that provided PTD benefits to
qualifying individuals, and Aetna denied Parker’s claim for PTD
benefits.

                                        7
we    must   then   determine    whether     the   administrator’s    decision

constitutes an abuse of discretion.            Wildbur, 974 F.2d at 637-38.

In this second prong of the analysis, we look to: (1) the internal

consistency of the plan under the administrator’s interpretation;

(2)    any   relevant    regulations       formulated   by    the   appropriate

administrative agencies; and (3) the factual background of the

determination and any inferences of bad faith.               Id. at 638.

                        B.   Terms of the SPD Control

       Parker contends that the administrator’s decision is incorrect

because it ignores the plain language and meaning of the summary

plan description. In Hansen v. Continental Insurance Co., 940 F.2d

971, 982 (5th Cir. 1991), this court held that

       the summary plan description is binding, and [] if there
       is a conflict between the summary plan description and
       the terms of the policy, the summary plan description
       shall govern. Any other rule would be, as the Congress
       recognized, grossly unfair to employees and would
       undermine ERISA's requirement of an accurate and
       comprehensive summary.

See also Rhorer v. Raytheon Eng’rs & Constructors, Inc., 181 F.3d

634, 640-42 (5th Cir. 1999).

       Here, unlike § 7.03 of the Retirement Plan, the SPD does not

explicitly state that the employee must be awarded PTD benefits

under the group insurance policy in order to receive disability

retirement benefits.         The SPD simply provides that an employee is

eligible for DRI benefits if he has “ten or more years of credited

service” and “become[s] permanently and totally disabled.” The SPD



                                       8
further provides that an employee will be “considered” permanently

and totally disabled if the insurance company approves his claim

for PTD benefits, but does not foreclose proof of disability by

other means.   Finally, the SPD states that in order to file a claim

for DRI benefits, the employee must submit a PTD claim and complete

an application for retirement benefits.7

      Mr. Parker has fulfilled all of these requirements.    He had

ten or more years of credited service, became permanently and

totally disabled, filed a claim for PTD benefits, and completed an

application for retirement benefits.    Therefore, as the terms of

the SPD are inconsistent with the terms of the Retirement Plan, the

SPD controls the outcome of this case.8    Under a fair reading of

the SPD, Mr. Parker is entitled to DRI benefits.9

  7
   Again, the application forms were supposed to be available to
Parker in his Personnel Department.    But see supra note 2 and
accompanying text.
  8
   In Hansen and Rhorer, we reasoned that the requirements imposed
by ERISA on summary plan descriptions would be eviscerated by a
rule that permits the terms of the plan or policy to control
whenever they conflict with the terms of the SPD. See Rhorer, 181
F.3d at 640. “[I]f a participant has to read and understand the
policy in order to make use of the summary, then the summary is of
no use at all.” Hansen, 940 F.2d at 981-82.
  9
   Although the administrator and the district court adopted a
different interpretation of the SPD, in so doing they relied
heavily on the terms of the Retirement Plan. However, as Hansen
clearly demonstrates, the SPD must speak for itself; the employee
is not required to verify the consistency of the plan with its
summary description. See supra note 8.     Focusing, then, on the
terms of the SPD, we find that they are unambiguous. However, to
the extent that any ambiguities exist, “the rule of contra
proferentem, that ambiguities in contracts are to be resolved
against the drafter, must be applied when a summary plan

                                  9
  C.    The Administrator’s Interpretation Was Legally Incorrect

       We stated above the three general factors considered in

determining whether an administrator’s interpretation of a plan is

legally correct.        “These factors are not particularly helpful to

our analysis, however, because here we are reviewing, specifically,

the    plan   administrator’s    interpretation   of    the   summary   plan

description.”      Rhorer, 181 F.3d at 640 n.7.        Therefore, while we

address these considerations, we do so with particularized focus on

the SPD.      See id.

       With reference to the first factor, Parker complains that the

administrator did not treat him in a uniform manner.              However,

neither Parker nor the defendants presented any evidence as to

whether the administrator has previously awarded DRI benefits to

similarly situated plan participants.         Because of this lack of

evidence, there is no basis for us to make a finding regarding

uniformity of construction.       See Batchelor v. Int’l Bhd. of Elec.

Workers Local 861 Pension & Retirement Fund, 877 F.2d 441, 444-45

(5th Cir. 1989).

       Our finding that Parker is entitled to DRI benefits under a

fair reading of the SPD necessarily resolves the second factor in

his favor.     Contrary to the administrator’s interpretation and the

ruling of the district court, the SPD does not clearly explain that



description contains an ambiguous term or requirement.” Rhorer,
181 F.3d at 640-41.     “Thus, ambiguous terms in summary plan
descriptions are resolved in the employee’s favor.” Id. at 641.

                                    10
a DRI applicant can only establish permanent and total disability

if the insurance company approves his PTD claim.      Absent a clear

expression of this significant limitation, the SPD cannot be fairly

read to prohibit Parker from proving his disability through the

evidence contained in the record.

        Finally, in reviewing the correctness of the administrator’s

decision, we must determine whether either of the interpretations

would give rise to substantial unanticipated costs to the plan.

See Batchelor, 877 F.2d at 445.        The district court found that

Parker’s interpretation would eliminate any time restrictions on

filing a claim for PTD benefits, thereby exposing the plan to

unanticipated costs in handling stale claims.          However, this

concern was misguided because Parker does not seek PTD benefits.

Instead, he asserts that the denial of his PTD claim as untimely

does not preclude an award of DRI benefits.        The SPD does not

specify a time limitation for filing a DRI claim.      Consequently,

under pertinent federal regulations,10 the 12-month application

period for PTD benefits cannot be interpreted as a restriction on

the disability retirement provisions.11    We acknowledge that Parker

  10
       See infra Part II.D.
  11
    It is true that the SPD requires a DRI claimant to first file
for PTD benefits, and the latter claim is untimely if filed beyond
one year after the injured employee stops active work. However, as
Parker points out, it is illogical to conclude that the employee
who timely files a PTD claim must also apply for DRI benefits
within the    same   one-year   period.     Under   this  strained
interpretation, a worker who files the PTD claim but is still
undergoing medical treatment and evaluation, and perhaps has not

                                  11
did not file his DRI claim until 1995, and that this delay may not

have been expected by Owens-Illinois.         However, in light of the

unique factual circumstances of this case, we are convinced that a

finding for   Parker   will   not   burden   the   Retirement   Plan   with

substantial unanticipated costs.         As a result of the closure by

Owens-Illinois of its New Orleans Personnel Department, the proper

claim forms were not available to Parker in the location identified

in the SPD, and no personnel officers were on hand to assist him in

applying for the benefits to which he was entitled.        Because these

basic resources were presumably available to plan participants at

other Owens-Illinois facilities, the third factor does not prevent

us from adopting Parker’s fair and reasonable reading of the SPD.

     After considering the relevant factors, we conclude that the

plan administrator’s decision was legally incorrect.

           D. The Administrator Abused its Discretion

     Having determined that the administrator’s interpretation was

legally incorrect, we must now decide whether the interpretation



yet been examined by an independent physician chosen by the
insurance company, would nevertheless have to file a DRI claim even
though the eligibility requirement of permanent and total
disability has not been established.      As for the employee who
cannot declare within 12 months of his injury that his condition
will never improve and that he will never rejoin the workforce, the
insurance company may dismiss as untimely a PTD claim filed beyond
12 months without inquiry into the actual merits of the disability
claim. Although Owens-Illinois may have intended to deprive this
employee of DRI benefits even though he is permanently and totally
disabled, the company did not make this intention clear in the SPD.
We therefore find that the one-year limitation applies only to the
PTD claim.

                                    12
rises to an abuse of discretion.           We previously observed the three

factors relevant to this second prong of the analysis.                   Applying

these factors to the record before us, we conclude that the

administrator abused its discretion, and that the district court

erred in granting summary judgment to the defendants.

       Regarding     the   first     factor,     it     is     clear   that    the

administrator’s denial of Parker’s claim did not disturb the

internal consistency of the plan, since § 7.03 of the Retirement

Plan provides that an employee must be awarded PTD benefits under

the    group   insurance    policy    in     order    to     recover   disability

retirement benefits.       However, the abuse of discretion inquiry in

this case is directed at the administrator’s interpretation of the

SPD, and not its interpretation of the plan itself.                    Thus, the

first factor does not assist our analysis.                   Rhorer, 181 F.3d at

643.

       As   for    the   second    factor,     “ERISA      requires    that   plan

participants be provided with an accurate, comprehensive, easy to

understand summary of the plan.”            Hansen, 940 F.2d at 980.

       A summary plan description of any employee benefit plan
       shall be furnished to participants and beneficiaries. .
       . . The summary plan description shall . . . be written
       in a manner calculated to be understood by the average
       plan participant, and shall be sufficiently accurate and
       comprehensive to reasonably apprise such participants and
       beneficiaries of their rights and obligations under the
       plan.

29 U.S.C. § 1022(a). The relevant federal regulations provide that

a summary plan description “must not have the effect to misleading,


                                       13
misinforming or failing to inform participants and beneficiaries.”

29 C.F.R. § 2520.102-2(b). Also, the SPD must contain “a statement

clearly    identifying         circumstances       which     may     result     in

disqualification, ineligibility, or denial . . . of any benefits

that a participant or beneficiary might otherwise reasonably expect

the plan to provide. . . .”           Id. § 2520.102-3(l).          Finally, the

administrative regulations expressly require that “exceptions,

limitations, reductions, or restrictions of plan benefits” be

clearly noted. Id. § 2520.102-2(b).

      The foregoing regulations dictate that restrictive provisions,

like the requirement in § 7.03 of the Retirement Plan of an award

of PTD benefits under the group insurance policy, be properly

disclosed in the SPD.      Rhorer, 181 F.3d at 643.         Thus, by providing

Mr.   Parker   with   a    SPD   that   did    not    clearly      indicate    this

restriction, Owens-Illinois failed to comply with its obligations

under ERISA and the relevant federal regulations.                     The second

factor therefore points to an abuse of discretion.

      The third and final consideration calls our attention to the

factual   background      of   the   denial   of     Parker’s   claim    and   any

inferences of bad faith. The record before us contains no evidence

that the defendants acted in bad faith.                    However, a legally

incorrect interpretation of a plan or SPD may constitute an abuse

of discretion if it advances the conflicting interest of the

administrator at the expense of the affected plan participant. See

Wildbur, 974 F.2d at 638.         Thus, the existence of a conflict is a

                                        14
factor to be considered in determining whether a self-interested

administrator with discretionary authority abused its discretion in

denying a claim. Vega v. National Life Ins. Servs., 188 F.3d 287,

297 (5th Cir. 1999).       In the present case, the plan administrator,

the Owens-Illinois Employee Benefits Committee, is comprised of

members selected by the Chief Executive Officer of Owens-Illinois,

and the Retirement Plan vests the Committee with discretionary

authority.12 Because Owens-Illinois funds the Retirement Plan,13 the

administration      of   the   plan   by   a   Committee    consisting    of   the

company’s agents creates a potential, if not an actual, conflict of

interest,   which    we   must   consider      in   our   abuse   of   discretion

analysis.

       When Parker applied for DRI benefits, he asked the Committee

to consider the relationship between his delay in filing the claim

and the special circumstances surrounding the closure of the New

Orleans plant. Had the Committee observed that Parker was deprived

of the assistance of a personnel office and examined the merits of

his claim, it would have found that Parker meets the eligibility

  12
    Section 10.04 of the Retirement Plan provides that “[t]he
Committee shall determine what and when Participants and their
Beneficiaries are entitled to receive benefits hereunder, and shall
advise such of the Trustees as are to make benefit disbursements
hereunder, in writing, thereof and of the amount of benefits to be
paid to each of them.” See also supra note 5.
  13
    Section 4.01 of the plan states that Owens-Illinois will
“contribute to the Trustee such amounts as may be necessary,
pursuant to accepted actuarial and funding methods and standards
adopted by the Committee, to provide retirement and other benefits
under this Plan with respect to its Participants hereunder.”

                                       15
requirements set forth in the SPD.      However, the Committee never

reached the issue of whether Parker is permanently and totally

disabled for the purposes of DRI benefits, relying instead on

Aetna’s previous denial of Parker’s PTD claim.       In view of the

Committee’s failure to reach this issue, the conflicting interests

of the Committee, and the unique factual circumstances of Parker’s

case, we find that the third factor weighs in favor of Mr. Parker.

        Finding that two of the three relevant factors suggest an

abuse of discretion, we conclude that the district court erred in

granting the defendants’ motion for summary judgment.

                           III.   Conclusion

        Because Mr. Parker’s permanent and total disability is not

disputed by the defendants,14 we find that he is entitled to summary

judgment on his claim for DRI benefits.        The judgment of the

district court is REVERSED,15 and we REMAND for entry of judgment

in favor of Mr. Parker in accordance with this opinion.



  14
       See supra note 4.
  15
    Owens-Illinois argues that we should affirm the district
court’s grant of summary judgment in its favor on the alternative
ground that Parker’s claim for disability retirement benefits is
barred by prescription. However, our circuit precedents clearly
establish that Parker’s claim for benefits under ERISA is governed
by Louisiana’s ten-year prescriptive period for personal actions.
See Hall v. Nat’l Gypsum Co., 105 F.3d 225, 230 (5th Cir. 1997).
Moreover, a cause of action under ERISA accrues when a request for
benefits is denied. Id.; Paris v. Profit Sharing Plan for Employees
of Howard B. Wolf, Inc., 637 F.2d 357, 361 (5th Cir. 1981).
Because Parker’s request for benefits was denied 1995, his suit,
which he instituted in 1997, is not time-barred.

                                   16
