     Case: 10-30681 Document: 00511504341 Page: 1 Date Filed: 06/09/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 9, 2011

                                       No. 10-30681                         Lyle W. Cayce
                                                                                 Clerk

MARY ANN LETTER, Individually and as Executrix/Administratrix of the
Estate of Timothy D. Letter; TIMOTHY PATRICK LETTER; JOSEPH JOHN
LETTER; CHRISTOPHER MICHAEL LETTER; JOHN PATRICK LETTER,

                                                   Plaintiffs-Appellants
v.

UNUMPROVIDENT CORPORATION; UNUM LIFE INSURANCE
COMPANY OF AMERICA; UNUM GROUP, formerly known as
UnumProvident Corporation,

                                                   Defendants-Appellees




                    Appeal from the United States District Court
                        for the Eastern District of Louisiana
                              USDC No. 2:02-CV-2694


Before GARWOOD, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
       Timothy Letter (“Decedent”) was an employee of PepsiAmericas, Inc.
(“Pepsi”).   Defendant Unum Life Insurance Company of America (“Unum”)
issued a group insurance plan (“Plan”) to Pepsi that included both life insurance
coverage and coverage for accidental death and dismemberment (“AD&D”).


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                       No. 10-30681

Decedent’s estate and several family members (“Plaintiffs”) seek to recover
AD&D benefits under the Plan. Unum and the Plaintiffs filed cross-motions for
summary judgment. The district court denied the Plaintiffs’ motion and granted
Unum’s, concluding that the Plaintiffs were not entitled to recover AD&D
benefits. The Plaintiffs appeal. For the following reasons, we AFFIRM.
                                              I
       While Decedent was employed by Pepsi, he participated in the Plan. When
he stopped working due to disability, he stopped paying premiums. Some time
later he died, and his wife, Mary Ann Letter (“Mrs. Letter”) filed a life insurance
claim under the Plan. Unum determined that Mrs. Letter was entitled to life
insurance benefits under a “waiver of premium” term in the Plan’s life insurance
provisions. The waiver of premium provides that in the event the insured
becomes disabled while covered under the policy, Unum will waive the premiums
for as long as the insured is disabled. Accordingly, Unum paid life insurance
benefits under the Plan, despite the Decedent’s failure to pay premiums for the
period while he was disabled. Plaintiffs then provided the Decedent’s medical
records to show that his death was accidental and to recover AD&D benefits.
Unum denied AD&D benefits because, inter alia, the AD&D portion of the policy
did not provide for a waiver of premiums.
       The Plaintiffs sought to compel payment of the AD&D claim by amending
the complaint in this case, which was already pending in district court.1 The
parties submitted cross-motions for summary judgment. The district court
granted Unum’s and denied the Plaintiffs’, concluding that Unum did not abuse




       1
          Originally, the Decedent himself had filed an action to compel payment of disability
benefits. After Letter’s death, the Plaintiffs filed a motion to substitute parties, which the
district court granted. The originally contested disability benefits were posthumously paid
and are not at issue in this appeal.

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                                  No. 10-30681

its discretion in concluding that the waiver of premium provision applied only
to the life insurance portion of the Plan. This appeal followed.
                                        II
      The Plaintiffs argue that the district court erred by concluding that Unum
acted within its discretion in denying the claim for AD&D benefits. They argue
that the Plan did not clearly establish that the waiver of premium provision
applied only to the life insurance coverage, and that the Plan should be
construed against Unum as the drafter. Unum counters that the life insurance
and AD&D portions of the Plan were clearly delineated, and that the waiver of
premium provision applied only to the life insurance coverage. Unum contends
that it therefore acted within its discretion in construing the Plan, and that it
was therefore entitled to summary judgment.
      We review a district court’s grant of summary judgment de novo. Hanks
v. Transcont’l Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir. 1992). “The party
moving for summary judgment must establish that there are no genuine issues
of material fact. ‘Once the moving party makes that showing, however, the
burden shifts to the nonmoving party to show that summary judgment is not
appropriate.’” Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th
Cir. 2001) (quoting Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir.
1991)). “Thus, to defeat a motion for summary judgment, the nonmoving party
must ‘go beyond the pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.’” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986)).
      The parties agree that the Plan is covered by the Employee Retirement
Income Security Act (“ERISA”). Where, as here, a benefit plan gives an
administrator discretionary authority to construe the plan’s terms and render
benefits decisions, the district court reviews the factual and legal determinations

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                                   No. 10-30681

of the administrator for abuse of discretion only. Holland v. Int’l Paper Co. Ret.
Plan, 576 F.3d 240, 246 (5th Cir. 2009). To establish the terms of the Plan, the
parties have introduced a lengthy document that refers to itself as the
“Summary of Benefits.” The Summary of Benefits contains a number of different
sections, including ones setting forth the specific terms of life insurance and
AD&D coverage. The waiver of premium provision appears in the life insurance
section, but it does not appear in the AD&D section. The waiver is referred to
as a “life insurance premium waiver.” The obvious implication is that a waiver
is available for the life insurance coverage and not for AD&D coverage. Unum’s
interpretation is sound.
        The Plaintiffs argue next that the terms of the Plan are inconsistent with
what they have identified as the summary plan description. ERISA provides
that
        [a] summary plan description of any employee benefit plan shall be
        furnished to participants and beneficiaries as provided in section
        1024(b) of this title. The summary plan description shall include the
        information described in subsection (b) of this section, 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). A policy and a summary plan description are “two distinct
documents.” Hansen v. Cont’l Ins. Co., 940 F.2d 971, 981 (5th Cir. 1991). We
have held “that the summary plan description is binding, and that if there is a
conflict between the summary plan description and the terms of the policy, the
summary plan description shall govern.” Id. at 982. The Plaintiffs argue that
the summary plan description they have identified does not adequately inform
a policyholder that coverage can be lost when the covered employee becomes
disabled.



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                                      No. 10-30681

      As a threshold matter, however, Unum disputes whether the pages on
which the Plaintiffs rely are the summary plan description for the Plan. Unum
points out that the Plaintiffs have identified only a few pages of the much longer
Summary of Benefits described above.              Plaintiffs have, Unum suggests,
misidentified a section that was intended to provide certain ERISA-required
information, but not to serve as a stand-alone summary plan description. Unum
points out that the Plaintiffs have provided no affidavits or other evidence to
suggest that the pages they have identified were distributed to the Decedent or
any other Pepsi employees as a summary plan description. Unum, in contrast,
provided an affidavit by an Unum senior contract specialist explaining that the
section was not intended as a stand-alone description of all the terms and
provisions of applicable coverage.
      The Plaintiffs reply that it is clear, from the face of the disputed section
of the Summary of Benefits, that that section is the summary plan description.
In particular, the Plaintiffs cite the heading of that section, which reads:
                                         ERISA
                          SUMMARY PLAN DESCRIPTION
The heading, however, should not be considered in isolation.          The table of
contents identifies the disputed section not as a summary plan description, but
merely as “ERISA”—a denomination consistent with Unum’s reading of the
section as merely conveying certain ERISA-required information.2 The section,
moreover, omits key information, such as basic eligibility criteria, that must be
included in a summary plan description. See 29 U.S.C. § 1022(b). A review of
the section confirms that it is by no means a comprehensive summary. It reads
like a mix of miscellaneous details, not a description intended to be “sufficiently
. . . comprehensive to reasonably apprise . . . participants and beneficiaries of



      2
          Similarly, the pages are numbered “ERISA-1” to “ERISA-4.”

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                                 No. 10-30681

their rights and obligations under the plan.” 29 U.S.C. § 1022(a). In the face of
Unum’s affidavit establishing that the section was not intended to stand alone,
and the fact that the content of the section seems to confirm that
characterization, the heading does not by itself create a disputed issue of
material fact with regard to whether that section was the summary plan
description.   We accordingly need not consider the argument that it was
inconsistent with the policy.
                                       III
      For the foregoing reasons, the judgment of the district court is AFFIRMED
in all respects.




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