                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-1994

Curcio v. John Hancock Mutual Life Ins. Co.
Precedential or Non-Precedential:

Docket 92-2047




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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ___________

             Nos. 93-7545 and 93-7556
                   ___________

MARITA L. CURCIO;
THE ESTATE OF FREDERICK CURCIO, III

                 vs.

JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY;
CAPITAL HEALTH SYSTEMS

     John Hancock Mutual Life Insurance Company
     ("John Hancock"),

                             Appellant in No. 93-7545


MARITA L. CURCIO;
THE ESTATE OF FREDERICK CURCIO, III

                 vs.

JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY;
CAPITAL HEALTH SYSTEMS

     MARITA L. CURCIO, INDIVIDUALLY AND AS EXECUTRIX OF
     THE ESTATE OF FREDERICK CURCIO, III

                             Appellant in No. 73-7556
                   ___________

 Appeal from the United States District Court
    for the Middle District of Pennsylvania
           (D.C. Civil No. 92-00789)
                  ___________

                      Argued
                  March 10, 1994
Before:   MANSMANN and LEWIS, Circuit Judges and
            McKELVIE, District Judge.*

             (Filed August 17, 1994)
                   ___________
*         Honorable Roderick R. McKelvie of the United States
District Court for the District of Delaware, sitting by
designation.

Michael D. Fishbein, Esquire (ARGUED)
Levin, Fishbein, Sedran & Berman
320 Walnut Street
Philadelphia, PA 19106

  Counsel for Appellee/Cross Appellant Marita L. Curcio

James K. Thomas, II, Esquire
Richard C. Seneca, Esquire (ARGUED)
Thomas, Thomas & Hafer
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108

  Counsel for Appellee CAP Health Systems

Alan R. Boynton, Jr., Esquire (ARGUED)
McNees, Wallace & Nurick
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108

  Counsel for Appellant
                             ___________

                        OPINION OF THE COURT
                             __________


MANSMANN,   Circuit Judge.

            Frederick Curcio, III, M.D., died in an automobile

accident while employed as a full time physician at Harrisburg

Hospital, which is owned by Capital Health Systems.    Capital

Health sought to provide to its employees basic life insurance

coverage and basic accidental death and dismemberment coverage

through John Hancock Mutual Life Insurance Company.    Marita L.

Curcio, Frederick's widow, collected $200,000 in life insurance

proceeds and $50,000 from the accidental death coverage.
Claiming entitlement to an additional $150,000 in accidental

death benefits because of representations made by Capital Health

in its plan summary document, she brought an action, individually

and as executor of Frederick's estate, against Capital Health and

John Hancock under the Employee Retirement Income Security Act of

1974, 29 U.S.C. §§ 1001-1461 (1988).     The district court granted

summary judgment in favor of Mrs. Curcio and Capital Health and

against John Hancock.     John Hancock appeals and Mrs. Curcio

cross-appeals to preserve her rights against Capital Health.      We

hold that John Hancock is not responsible either for Capital

Health's inaccurate representations made to its employees or for

any additional recovery under John Hancock's clearly stated

policy.   We further hold that Capital Health is liable under the

alternative theories of breach of fiduciary duty and equitable

estoppel.



                                  I.

            The historical facts of this case are not in dispute.

Since October of 1989,1    John Hancock has provided life insurance

and accidental death and dismemberment insurance for all full-

time Capital Health employees in an amount equal to the

employee's base annual salary to a maximum of $50,000.     John


1
 .        Prior to October, 1989, Capital Health contracted with
Phoenix and Prudential Insurance Companies for its employee
insurance program. In the summer of 1989 Capital Health hired
Coopers & Lybrand to interview various other insurance companies
in an effort to acquire a new plan. Coopers & Lybrand negotiated
the agreement with John Hancock on behalf of Capital Health.
Hancock also offered twenty-one senior employees, who had the

same basic coverage as the other employees, the opportunity to

purchase supplemental coverage, for both life and AD&D, up to the

amount they were currently receiving.   Because no one could be

added to this group of employees, it became known as the frozen

group.   Dr. Curcio was not a member of this group.2

           One year later Capital Health wanted to extend to all

employees the opportunity to purchase the same supplemental

coverage from John Hancock as offered to the frozen group.

Capital Health held group meetings for its employees where it

introduced the supplemental coverage through an audio-visual

presentation, explaining that supplemental insurance could be

purchased in amounts equaling one, two or three times the amount

of an employee's base annual salary, not to exceed $150,000.

This coverage amount would be in addition to the coverage amount

provided by the basic plan.   The presentations clearly

represented to the employees that this option was available "to

increase your life and AD&D insurances significantly."    The

audiotape, which was accompanied by slides, stated in pertinent

part:



2
 .        John Hancock asserts that originally it did not intend
to provide to the frozen group a policy containing additional
AD&D benefits. Although those additional benefits were never
negotiated with Capital Health, because John Hancock was
receiving an additional amount in premiums above that which was
expected for the life coverage and which seemed to represent an
AD&D premium, John Hancock agreed to add AD&D to the frozen
group's coverage. John Hancock issued a new policy indicating
the change.
                Finally, let's look at other important
          elections you have available under choice
          plus.

               Capital Health provides free group life
          and accidental death and dismemberment -- or
          AD&D -- insurance for all full-time and part-
          time employees scheduled to work at least 16
          hours a week. Each of the coverages is equal
          to:

               •    One Times Basic Average Earnings up
                    to a Maximum of $50,000 for full-
                    time employees and,

               •    One Times Basic Average Earnings up
                    to a Maximum of $25,000 for part-
                    time employees.

          You also have an opportunity of purchasing
          additional coverages up to three times basic
          average earnings subject to the maximums
          shown on the chart. (Chart on Screen)

          The contributions you pay for these coverages
          are at low group rates and depend on your
          amount of coverage and your age. An
          important point: unless you take advantage
          of increasing your insurance coverages now,
          you will only be able to "step up" one
          additional level of coverage per year --
          until you reach your coverage limit -- if you
          want higher levels of coverage in the future.
          In short, this is a one time offer. You can
          either take advantage of the current
          enrollment period to increase your life and
          AD&D insurances significantly or wait until
          future years to increase coverages on a
          slower year to year basis. (Emphasis added.)


          The dispute is whether the supplemental insurance

offered to all the employees was the same as the coverage offered

to the frozen group; specifically, did the supplemental coverage

include life and AD&D?   John Hancock claims the supplemental

coverage only included life insurance, and it points to the
differing language in each group's policies to support its

position.3

             Dr. Curcio's salary made him eligible to purchase the

maximum amount of coverage, which he did.     Capital Health charged

him bi-weekly premiums of $6.00 for this coverage.    The record

indicates, and the district court so found, that Dr. Curcio

believed his coverage to include both life and AD&D insurance.

On August 5, 1991, Dr. Curcio died in an automobile accident.

             A representative from Capital Health, James Henry, made

an inquiry by telephone to John Hancock regarding a determination

of benefits due Mrs. Curcio.     Then Assistant Sales Manager,

Richard Lintner, responded that Dr. Curcio had $400,000 in

coverage ($50,000 basic life, $50,000 basic AD&D, $150,000

supplemental life, and $150,000 supplemental AD&D).

             Shortly thereafter John Hancock recanted its oral

representation of coverage and expressed, before a claim was

filed, that its preliminary determination was incorrect and that

Dr. Curcio had $150,000 in supplemental life coverage only,

giving his beneficiary a total benefits package of $250,000.

John Hancock claimed that employees in Dr. Curcio's position

never had the opportunity to purchase supplemental AD&D coverage,




3
 .        Just as in the frozen group's situation a year earlier,
John Hancock issued new policies to reflect the change in
coverage. However, unlike the frozen group's premiums, John
Hancock argues that the premiums for the general group's new
policy only included payments for life coverage.
and even if they did, Dr. Curcio only paid premiums for $150,000

in supplemental life coverage.4

          Subsequently, Mrs. Curcio filed a claim with John

Hancock for proceeds due.    John Hancock tendered a check to her

in the amount of $250,000.    Mrs. Curcio initiated this lawsuit to

recover an additional $150,000 in supplemental AD&D benefits.



                                  II.

          The district court concluded that the terms of the

policy were ambiguous and, applying the doctrine of contra

proferentum, granted summary judgment against John Hancock in

favor of Mrs. Curcio.5   John Hancock appeals.

          The district court also held that Capital Health was

not a proper party under ERISA because it was neither a benefit

plan nor a fiduciary, which resulted from the district court's

finding of a lack of discretion over the determination of

benefits under the plan.    Thus the district court granted Capital

4
 .        Initially Capital Health argued to John Hancock that
additional AD&D benefits were included in the contributory plan
and encouraged Mrs. Curcio to file suit against John Hancock to
challenge the determination of benefits under the policy.
Capital Health urged John Hancock to honor the additional AD&D
amount, but John Hancock refused. Subsequently, Capital Health
changed its position and now contends that the additional AD&D
was never included in the policy.
5
 .        This suit was originally filed in the Court of Common
Pleas of Dauphin County, Pennsylvania. Because Mrs. Curcio's
claims were governed by ERISA, John Hancock removed the case to
the United States District Court for the Middle District of
Pennsylvania pursuant to 28 U.S.C. § 1441. An amended complaint
was filed on July 16, 1992, asserting theories of relief grounded
in ERISA.
Health's motion for summary judgment.     Mrs. Curcio appeals this

order as an alternative theory of recovery.

           We have jurisdiction pursuant to 28 U.S.C. § 1291, and

our standard of review is plenary.     Fischer v. Philadelphia Elec.

Co., 994 F.2d 130, 132-33 (3d Cir. 1993).     Our task is to

determine whether, viewing the evidence in the light most

favorable to the non-moving party, there exists a genuine issue

of material fact such that a reasonable factfinder could return a

verdict for that party.6    Id. (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)).



                                III.

           We turn first to Mrs. Curcio's claim against John

Hancock Mutual Life Insurance Company.     The parties concur that

the only basis upon which recovery can be had against John

Hancock is if there is coverage under the policy that it issued.

The district court, utilizing the doctrine of contra proferentum,

found coverage to exist.    This is a question of law subject to

plenary review on appeal.    Taylor v. Continental Group, 933 F.2d

1227, 1232 (3d Cir. 1991).

           The contra proferentum doctrine holds that ambiguities
in an insurance policy are to be resolved in favor of the

insured.   Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1257 (3d


6
 .        In presenting their motions for summary judgment, the
parties stipulated that the district court adjudicate all claims
without trial solely on the basis of the written record,
including the resolution of any material issues of fact.
Cir. 1993).    We look to the number of reasonable interpretations

a given contract, provision, or term may receive in determining

ambiguity.    Taylor, 933 F.2d at 1232.   If we find but one

reasonable interpretation, then a fortiori there can be no

ambiguity.    However, if the language is susceptible to more than

one reasonable interpretation, then it will be found to be

ambiguous.    Stendardo v. Federal Nat'l Mortgage Ass'n,   991 F.2d

1089, 1094 (3d Cir. 1993).

          Here the district court held:
          In this case, we conclude that reasonable
          persons reading the plan descriptions for the
          basic life insurance and the supplemental
          life insurance could fairly come to either of
          the following conclusions: (1) that AD&D
          coverage is inherent in the phrase "life
          insurance" such that any supplemental life
          insurance purchased would automatically
          include AD&D coverage, or (2) that because
          AD&D is specifically referred to in the basic
          plan and not in the supplemental, it was
          simply not a part of the latter. While our
          determination that the language is ambiguous
          hinges on an objective reading of the
          challenged passage, we find support for this
          result in the confusion among the defendants
          in the days and weeks following Dr. Curcio's
          death.


Slip op. at 11-12.    We disagree with the district court's

analysis in two respects.    First, our review of the policy does

not reveal an ambiguity.    Capital Health seems to have created

the ambiguity.    Second, the term "life insurance," when given its

fundamental and universally accepted meaning, does not include

AD&D coverage.    Although our role here is to determine whether

there are two possible meanings, were we given the task of
interpreting the term, we would hold that the certainty and

predictability that a literal construction of the term "life

insurance" would provide would better serve the purposes of

ERISA.   Cf. Rolhman v. Hawkeye-Security Insurance Co., 502 N.W.2d

310 (Mich 1993)(giving a literal construction to the term

"occupant" in interpreting the Michigan no-fault act).

          The record reveals that the original policy applicable

to Dr. Curcio clearly differentiated between life insurance and

AD&D insurance.   In the table of contents under the heading of

"COVERAGES," there were two entries.    Each was discussed

separately, the policy set forth two different filing

instructions for each respective claim, each had different

termination periods, and the payment of benefits to beneficiaries

was provided for separately.    Most importantly, life insurance

benefits were to be paid upon proof of death; however, AD&D

benefits were payable in the event of an accident resulting in an

enumerated injury or death.    The two are mutually exclusive, that

is, one could exist without the other.    Suggesting that life

insurance would include AD&D coverage is inconsistent with their

basic definitions.

          When Capital Health asked that supplemental insurance

be made available to all employees, the policy was amended

accordingly.   First, an amendment which described the schedule

for the supplemental coverage was added to the original policy,

which discussed life insurance only.     Subsequently a new policy

was issued.    This policy, similar to the original, had separate

entries for life and AD&D coverage.    In setting forth the basic
coverage in the master schedule, the new policy mimicked the

original.   It stated in pertinent part:

                BASIC INSURANCE (Non-Contributory)*
        Life, Accidental Death and Dismemberment Insurance
Class           Life                     AD&D (Full Amount)




            The very next page described the newly offered

supplemental life coverage.    Unlike the previous page, it stated:

                SUPPLEMENTAL INSURANCE (Contributory)
                            Life Insurance


The headings on these pages make clear that the supplemental

insurance included only life coverage, not AD&D.    Similar to the

original policy, the new policy also distinguished between life

and AD&D coverage.    It contained two different entries in the

table of contents, life and AD&D were discussed separately in the

text, the policy set forth two different filing instructions for

each respective claim, each had different termination periods,

and the payment of benefits to beneficiaries was provided

separately.    Additionally, the new policy clearly set forth a 90

day waiting period for basic life and AD&D coverage, but required

30 days for the supplemental life insurance.    The supplemental

life coverage terminated at age 70, contrary to AD&D and basic

life.

            The foregoing policies and amendments were provided to

Capital Health, but there is no evidence that Capital Health ever

distributed them to its employees.    In fact, it appears that when

John Hancock offered to Capital Health copies of the policies and
their amendments to give to the employees, Capital Health

declined.    Rather, Capital Health chose to make and distribute

its own summaries.    As we discuss infra, it was Capital Health's

summary of the new policy that created the confusion.

            Therefore, we conclude that John Hancock's insurance

policies were not ambiguous.    Further, the district court's

suggested interpretation of the term life insurance is overly

broad; life insurance does not inherently include AD&D insurance.

The district court erred in the initial steps of its analysis.

Thus, we will reverse the district court's order granting Mrs.

Curcio's motion for summary judgment with respect to John Hancock

and enter an order granting judgment in its favor.7

            We turn now to the issues involving Capital Health.



                                IV.

            ERISA provides:
            [A] person is a fiduciary with respect to a
            plan to the extent (i) he exercises any
            discretionary authority or discretionary
            control respecting management of such plan or
            exercises any authority or control respecting
            management or disposition of its assets, (ii)
            he renders investment advice for a fee or
            other compensation, direct or indirect, with
            respect to any moneys or other property of
            such plan, or has any authority or
            responsibility to do so, or (iii) he has any

7
 .        Because we find that the insurance policy is not
ambiguous, we need not address the parties' arguments regarding
the district court's use of the contra proferentum doctrine. We
note in passing that any question about the use of this doctrine
in ERISA cases that was left open in Taylor v. Continental Group,
933 F.2d 1227 (3d Cir. 1991) was answered in our decision in
Heasley v. Belden & Blake Corp., 2 F.3d 1249 (3d Cir. 1993).
           discretionary authority or discretionary
           responsibility in the administration of such
           plan.


29 U.S.C. § 1002(21)(A).8

          Capital Health argues that ERISA only permits suits to

recover benefits against the plan as an entity and against the

fiduciary of the plan, and because Capital Health is neither of

these, it is not a proper party under ERISA.    Gelardi v. Pertec
Computer Corp., 761 F.2d 1323, 1324-25 (9th Cir. 1985) (citing §§

1132(d), 1109(a) and 1105).     The district court agreed with

Capital Health that it is neither a "plan" nor a fiduciary.      We

believe it self evident that Capital Health is not a "plan;"

however, we take issue with the failure to find fiduciary status.

           We agree with the district court that the linchpin of

fiduciary status under ERISA is discretion.    Here the district

court found that "John Hancock's refusal to follow Capital

Health's directive indicates that the employer wielded no

discretionary authority over the granting of benefits."     Slip op.

at 11.   Thus it concluded that Capital Health could not be held

liable for Curcio's benefits.    It appears the district court

relied on the second phrase of subsection (i) above, "authority

8
 .        It is without doubt that the insurance policy at issue
here is part of an employee benefit plan within the meaning of
ERISA. 29 U.S.C. § 1002(1) and (3). In order to comply with
ERISA requirements, 29 U.S.C. § 1022, Capital Health published to
its employees a Statement of ERISA Rights and a list of General
Provisions and Information. Further, John Hancock asserted in
paragraph four of its motion to remove this case to federal court
that the life insurance policy is an employee welfare plan
subject to the provisions of ERISA.
or control respecting management or disposition of its assets,"

as the basis for its decision.    29 U.S.C. § 1002(21)(A)(i).

Unfortunately, the court failed to examine how the first phrase

of subsection (i), respecting the management of the plan, or

subsection (iii), the plan's administration, might affect Capital

Health's fiduciary status.9   This is where we continue the

analysis.

            Our task, simply stated, is to resolve whether Capital

Health maintained any authority or control over the management of

the plan's assets, management of the plan in general, or

maintained any responsibility over the administration of the

plan.   If we find such to be the case, we have a fortiori found

Capital Health to be a fiduciary.    We start from the standpoint

that we have previously held that ERISA broadly defines a

fiduciary.   Smith v. Hartford Ins. Group, 6 F.3d 131, 141 n.13

(3d Cir 1993).   See also H. Stennis Little, Jr. and Larry T.

Thrailkill, Fiduciaries Under ERISA: A Narrow Path to Tread, 30

Vand. L. Rev. 1, 4 (1977).

            In Smith we found a hospital that gave assurances of

continued coverage after changing health plans to be a fiduciary

responsible for its employees' loss in benefits when the new plan

failed to cover a disabled employee.    We noted that fiduciary

status under ERISA is broadly defined and held that the

circumstances of that case dictated our finding that the hospital


9
 .        Subsection (ii) does not seem to apply nor does Mrs.
Curcio so argue.
was a fiduciary.     Smith, 6 F.3d at 141 n.3.    The particular

circumstances of Smith are similar to our facts here.      After the

hospital decided to replace its Blue Cross/Blue Shield policy

with a self-funded insurance plan and because the employees had

the option to convert to an individual Blue Cross/Blue Shield

policy instead of enrolling in the new plan, the hospital's

personnel director conducted seminars to help employees make

their choices.    Id. at 135-36.    On the basis of these actions, we

found the hospital to have fiduciary status.

           Similarly, in Genter v ACME Scale & Supply Co., 776

F.2d 1180 (3d Cir. 1985), we held that ACME Scale & Supply met

the ERISA definition of fiduciary as an employer-administrator of

the plan at issue.     Id. at 1184.    We found that the employer

exercised discretionary authority and control in managing the

plan by notifying certain employees when they were eligible for

an increase in life insurance coverage not explained in the terms

of the plan.     Id. at 1184-85.   The employer's failure to notify

all employees generally was deemed a breach of the fiduciary duty

ERISA imposes.    Id. at 1185-86.     See also Fischer v. Philadelphia
Elec. Co., 994 F.2d 130, 133 (3d. Cir. 1993) (finding employer to

have fiduciary status solely on the basis of its role as plan

administrator under ERISA); Hozier v. Midwest Fasteners, Inc.,

908 F.2d 1155, 1158 (3d Cir. 1990) (holding that when employers

serve as plan administrators, they assume the role of fiduciary

under ERISA).10

10
 .         We have previously summarized the law in this area as
follows:
          ERISA makes clear that a fiduciary is one that

maintains discretionary authority or discretionary responsibility

in the administration of the plan.11   ERISA defines

"administrator" as "the person specifically so designated by the

terms of the instrument under which the plan is operated."     §

1002(16)(A)(i) (other definitions are stated, but are not

applicable here).   Capital Health, in its employee benefits

booklet, labels itself as the plan administrator.12    It seems
(..continued)

          [W]here an administrator of a plan decides
          matters required in plan administration or
          involving obligations imposed upon the
          administrator by the plan, the fiduciary
          duties imposed by ERISA attach. Where,
          however, employers conduct businesses and
          make business decisions not regulated by
          ERISA, no fiduciary duties apply. And, when
          employers wear "two hats" as employers and as
          administrators ". . . they assume fiduciary
          status `only when and to the extent' that
          they function in their capacity as plan
          administrators, not when they conduct
          business that is not regulated by ERISA."

Payonk v. HMW Industries, Inc., 883 F.2d 221, 225 (3d Cir. 1989)
(citations omitted).
11
 .        Section 1102(a)(1) states that "[e]very employee
benefit plan . . . shall provide for one or more named
fiduciaries who jointly or severally shall have authority to
control and manage the operation and administration of the plan."
Section 1102(a)(2) further states that "the term 'named
fiduciary' means a fiduciary who is named in the plan instrument,
or who, pursuant to a procedure specified in the plan, is
identified as a fiduciary." We have been unable to locate, nor
do the parties point out, the "named fiduciary" of the Capital
Health plan.
12
 .        Capital Health calls to our attention a case from the
Ninth Circuit that it claims supports its position that it is not
a fiduciary. Gelardi v. Pertec Computer Corp., 761 F.2d 1323
(9th Cir. 1985). Gelardi is easily distinguishable for, unlike
obvious to us that a plan administrator has responsibility in the

administration of the plan.   H. Stennis Little, Jr. and Larry T.

Thrailkill, Fiduciaries Under ERISA: A Narrow Path to Tread, 30

Vand. L. Rev. 1, 6 (1977).

          Here Capital Health announced the new plan to its

employees through literature and meetings.   Indeed, at the plan's

inception John Hancock offered to print booklet certificates for

each and every employee, but Capital declined.   Capital Health

chose to print and distribute its own booklet certificates

describing the plan and each of the plan's amendments.   The

general information section of the Choice Plus Booklet

distributed by Capital Health stated that the plan would be

administered through the Employee Relations Department of Capital

Health Systems.   It further stated that Capital Health could

modify or amend the plan at any time at its sole discretion, and

that Capital Health could terminate the plan at any time.

Finally, the information provided that a covered person's

benefits may not be assigned, except by the consent of Capital

(..continued)
our case, the employer relinquished its role as plan
administrator by hiring an outside corporation to administer the
plan; and as a result, the Ninth Circuit held that the employer
was not "a fiduciary because it retained no discretionary control
over the disposition of claims." Id. at 1325. Surprisingly, the
court also held that the retained administrator was not a
fiduciary because it did not "exercise fiduciary responsibilities
in the consideration of claims. [It] perform[ed] only
administrative functions, processing claims within a framework of
policies, rules, and procedures established by others." Id. at
1325. We emphasize that the Ninth Circuit, similar to the
district court here, failed to analyze the definitional section
of fiduciary pertaining to the plan's administration. §
1002(21)(A)(iii).
Health.   The Supreme Court has held that "one is a fiduciary to

the extent he exercises any discretionary authority or control."

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989).

           We conclude that Capital Health maintained sufficient

discretionary authority and responsibility in the administration

of the plan so as to satisfy the statutory definition of a

fiduciary, § 1002(21)(A)(iii), thus making it a proper party

under ERISA.13   Therefore, we need not address Curcio's

contention that ERISA permits suits against parties other than

plans and fiduciaries.14nn   We caution in passing, as we have

13
 .        Our holding is with respect to § 1002(21)(A)(iii) only.
As stated above, the first phrase of subsection (i), authority or
control respecting the management of the plan, may also lend
support; however, it is unnecessary for our conclusion here, and
we reserve for another day the task of defining its parameters.


14
 .        ERISA affords the beneficiary of an employee benefit
plan opportunity the ability to bring a civil suit to recover
benefits due. It provides in part:
          (a) Persons empowered to bring a civil action
          A civil action may be brought--

                 (1) by a participant or beneficiary . . .
                 (B) to recover benefits due to him under the
                 terms of his plan, to enforce his rights
                 under the terms of the plan, or to clarify
                 his rights to future benefits under the terms
                 of the plan;

                 (2) by the Secretary, or by a participant,
                 beneficiary or fiduciary for appropriate
                 relief under section 1109 of this title;

                 (3) by a participant, beneficiary, or
                 fiduciary   . . . (B) to obtain other
                 appropriate equitable relief . . . (ii) to
                 enforce any provisions of this subchapter or
                 the terms of the plan.
before, that the district courts should not easily fashion

additional ERISA claims and parties outside congressional intent

under the guise of federal common law.    Plucinski v. I.A.M. Nat'l

Pension Fund, 875 F.2d 1052, 1056 (3d Cir. 1989).



                                V.

          We have held that an employer can be liable under ERISA

in its fiduciary capacity for making affirmative

misrepresentations on breach of fiduciary duty and equitable

estoppel theories.   Fischer v. Philadelphia Elec. Co., 994 F.2d

130, 133-35 (3d Cir. 1993).   See also Haberern v. Kaupp Vascular

Surgeons Ltd. Defined Benefit Pension Plan, No. 93-1892, slip op.
(..continued)

                          *     *     *

          (d) Status of employee benefit plan as entity

               (2) Any money judgment under this
               subchapter against an employee
               benefit plan shall be enforceable
               only against the plan as an entity
               and shall not be enforceable
               against any other person unless
               liability against such person is
               established in his individual
               capacity under this subchapter.

29 U.S.C. § 1132 (emphasis added). Mrs. Curcio further contends
that the "any other person" phrase of § 1132(d)(2) authorizes a
suit against any person who undertake
ys a promissory obligation to provide benefits pursuant to the
terms of an ERISA regulated plan. Although she argues that such
is plainly the rule in the Third Circuit, the cases she cites
clearly do not support this theory. Heasley v. Belden and Blake
Corp., 2 F.3d 1249, 1258 n.10 (3d Cir. 1993); Ulmer v. Harsco
Corp., 884 F.2d 98, 102 n.1 (3d Cir. 1989); Anthius v. Colt
Industries Operating Corp., 789 F.2d 207, 212-13 (3d Cir. 1986).
at 23 (3d Cir. 1994); Smith v. Hartford Ins. Group, 6 F.3d 131,

141 n.13 (3d Cir. 1993).    Here Mrs. Curcio primarily presents an

equitable estoppel claim, which is authorized under ERISA

pursuant to § 1132(a)(3)(B) set forth above.   Bixler v. Central

Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1298 (3d Cir.

1993) (holding that § 1132(a)(3)(B) authorizes the award of

appropriate equitable relief to a beneficiary for violations of

ERISA).15   She alternatively argues that Capital Health is

subject to liability for breach of its fiduciary duty pursuant to

§ 1109.16
15
 .        Notably, we have recently held that damages are not
recoverable under § 1132(a)(1)(B). Haberern v. Kaupp Vascular
Surgeons Ltd. Defined Benefit Pension Plan, No. 93-1892, slip op.
at 24. Here, Mrs. Curcio relies on § 1132(a)(3)(B).
16
 .               (A) Any person who is a fiduciary with
            respect to a plan who breaches any of the
            responsibilities, obligations, or duties
            imposed upon fiduciaries by this subchapter
            shall be personally liable to make good to
            such plan any losses to the plan resulting
            from each such breach, and to restore to such
            plan any profits of such fiduciary which have
            been made through use of assets of the plan
            by the fiduciary, and shall be subject to
            such other equitable or remedial relief as
            the court may deem appropriate, including
            removal of such fiduciary. A fiduciary may
            also be removed for a violation of section
            1111 of this title.

29 U.S.C. § 1109.

          Mrs. Curcio argues that Capital Health need not be a
fiduciary to be found liable under an equitable estoppel theory
under ERISA. Because we find Capital Health to be a fiduciary,
we need not reach this issue. Cf. Smith v. Hartford Ins. Group 6
F.3d 131, 141 n.13 (3d Cir. 1993) (intimating that fiduciary
status is required to be liable on an equitable estoppel claim
under ERISA).
          We turn first to Mrs. Curcio's primary argument that

Capital Health's representations made in describing its new plan

to its employees give rise to an equitable estoppel claim under

ERISA.   To succeed under this theory of relief, an ERISA

plaintiff must establish (1) a material representation, (2)

reasonable and detrimental reliance upon the representation, and

(3) extraordinary circumstances.   Smith v. Hartford Ins. Group, 6

F.3d 131, 137 (3d Cir. 1993) (citing Gridley v. Cleveland

Pneumatic Co., 924 F.2d 1310, 1319 (3d Cir. 1991)).    The district

court did not address Mrs. Curcio's estoppel claim, presumably

because it found Capital Health to be an improper party under

ERISA.   The determination of an equitable estoppel claim is a

mixed question of law and fact.    Fischer, 994 F.2d at 135.   Here

the parties do not dispute the facts -- the written record

contains all the evidence.   Indeed, in presenting their motions

for summary judgment, the parties stipulated that the district

court adjudicate all claims without trial solely on the basis of

the written record, including the resolution of any material

issues of fact.   Having found Capital Health to be a proper

party, we now turn to her equitable theory.17

17
 .        The equitable theory of relief under ERISA is not to be
construed as conflicting with our precedent precluding oral or
informal amendments to ERISA benefit plans. Confer v. Custom
Engineering Co., 952 F.2d 41, 43 (3d Cir. 1991); Frank v. Colt
Industries, Inc., 910 F.2d 90, 98 (3d Cir. 1990)' Hozier v.
Midwest Fasteners, Inc., 908 F.2d 1155, 1163-64 (3d Cir. 1990).
Cf. Haberern v. Kaupp Vascular Surgeons Ltd. Defined Benefit
Pension Plan, No. 93-1892 n.6 (3d Cir. 1994). Here, Capital
Health not only made oral representations, but also distributed
written material describing the coverage.
                                A.

          First, Mrs. Curcio must show that Capital Health made

material representations.   Capital Health's representations

regarding supplemental life and supplemental AD&D insurance began

with an audio-visual presentation that Capital Health made in an

effort to solicit its employees to enroll in its new insurance

program entitled "New Choice Plus Flexible Benefits Plan."     The

audiotape, which was accompanied by slides, stated in pertinent

part:
          In short, this is a one time offer. You can
          either take advantage of the current
          enrollment period to increase your life and
          AD&D insurances significantly or wait until
          future years to increase coverages on a
          slower year to year basis. (Emphasis added.)


          This was not the only time Capital Health discussed

life and AD&D insurance together.    In the summary plan

description that Capital Health furnished to its employees for

the original coverage, the section describing the amounts of
insurance coverage discussed life and AD&D as separate coverages.

Nonetheless, in stating the amount of coverage, the summary plan

document stated that the AD&D coverage would be "[a]n amount

equal to your Term Life Insurance."    When Capital Health made

Choice Plus available, the plan that provided supplemental life

and AD&D coverages, rather than provide a formal amendment to the

summary plan description, it furnished a pamphlet with a section

entitled "Group Life & AD&D Insurance Coverages."   Cf. Gridley v.

Cleveland Pneumatic Co., 924 F.2d 1310 (3d Cir. 1991) (overview
brochure did not meet ERISA requirements for supplemental summary

plan description). This section begins:
          The Capital Health System provides all
          employees scheduled to work at least 16 hours
          a week with Basic Group Life Insurance and
          Accidental Death and Dismemberment (AD&D)
          Insurance at no cost.

          With Choice Plus you also have the
          opportunity to purchase additional amounts,
          up to three times your Base Annual Earnings,
          at low group rates.


Finally, this section of the pamphlet concludes:

          This pamphlet highlights the Group Life
          Insurance and Accidental Death and
          Dismemberment Insurance coverages available
          to you. For more detailed information on
          your plans, you should refer to your Summary
          Plan Descriptions covering them. If
          questions arise, the Legal Plan Documents
          will govern in all cases.


          Although the foregoing is a general summary of the

coverages discussed in this section of the pamphlet, coupling

this information, which describes the coverages as separate but

related, with the other information furnished to the employees,

it was reasonable for Dr. Curcio to conclude that both life and

AD&D insurance would continue to be made available in equal

amounts, that is, in supplemental form.   Cf. 29 U.S.C. §

1024(b)(1)(A) (requires that material modifications be written in

a manner calculated to be understood by the average plan

participant).   Genter v. Acme Scale & Supply Co., 776 F.2d 1180,

1185 (3d Cir. 1985) (holding that a "summary plan description

must not mislead, misinform, or fail to inform participants and
beneficiaries of the Plan").    See also Bower v. Bunker Hill Co.,

725 F.2d 1221, 1224-25 (9th Cir. 1984)(misleading summary plan

description coupled with management misrepresentations precluded

summary judgment for employer).

          Nevertheless, the question is whether these

representations are material.    We have held that any provision of

a plan subject to ERISA that establishes a benefit is a material

term of the plan.     Baker v. Lukens Steel Co., 793 F.2d 509, 512

(3d Cir. 1986).     Here Capital Health was actually representing

that the plan was offering a new benefit; thus, we find that the

representations Capital Health made were "material

representations."     See also Fischer v. Philadelphia Elec. Co.,

994 F.2d 130, 135 (3d. Cir. 1993) ("[A] misrepresentation is

material if there is a substantial likelihood that it would

mislead a reasonable employee in making an adequately informed

decision . . . .").

                                  B.

           Second Mrs. Curcio must demonstrate reasonable and

detrimental reliance upon the representations Capital Health

made.   This factor, which is generally referred to as reliance,

has within it two subfactors: reasonableness and injury.     Smith,
6 F.3d at 137.18    Mrs. Curcio testified in a sworn statement that

18
 .        But see Edwards v. State Farm Mut. Auto. Ins. Co., 851
F.2d 134, 137 (6th Cir. 1988)(employee benefit plan claimant who
had been misled by summary plan description and reassuring letter
from management, need not show detrimental reliance). Because it
is inconsistent with our precedents, we have previously declined
to follow Edwards. Gridley v. Cleveland Pneumatic Co., 924 F.2d
1310, 1319 n.8 (3d Cir. 1991).
she and her husband discussed the options available under the

Choice Plus program, "including increasing the death and

dismemberment coverage."    She testified that they had recently

bought a home and because the coverage was so reasonably priced,

they joked about his dying in an accident, her receiving double

benefits, and paying off the mortgage.    Subsequent to this

discussion, Dr. Curcio filled out an enrollment form electing the

maximum amount of coverage.    This form referred only to "Group

Life Insurance Options."    One month later, Dr. Curcio signed

another form confirming his elections and the appropriate payroll

deductions.   This second form did not distinguish between life

and AD&D coverage for either basic or supplemental benefits.

            In Smith we held that the plaintiff's conclusory

allegations that the Smiths could have obtained alternative

coverage, without more, were insufficient to withstand summary

judgment.   Smith, 6 F.3d at 137.   Here we find the meeting

between Dr. and Mrs. Curcio significant.    There is more than

conclusory statements; the Curcios had an actual discussion about

the protection being afforded through the purchase of additional

AD&D insurance.   For these reasons we conclude that the Curcios

have suffered an injury in giving up an opportunity to

accommodate their insurance needs through an independent

insurance carrier because of their reasonable reliance on Capital

Health's representations.   Cf. McKnight v. Southern Life and
Health Ins. Co., 758 F.2d 1566, 1570 (11th Cir. 1985) ("It is of

no effect to publish and distribute a plan summary booklet

designed to simplify and explain a voluminous and complex
document, and then proclaim that any inconsistencies will be

governed by the plan.    Unfairness will flow to the employee for

reasonably relying on the summary booklet.")



                                  C.

             Finally, Mrs. Curcio must demonstrate the existence of

extraordinary circumstances.     We have not specifically defined

this term, rather we rely on caselaw to establish its parameters.

In Rosen v. Hotel and Restaurant Employees and Bartender's Union,

637 F.2d 592 (3d Cir. 1981), we found that extraordinary

circumstances existed when the trustee of a pension fund advised

Rosen that his pension was in jeopardy due to his employer's

failure to make payments to the fund, allowed Rosen to write out

a check for the remainder of the employer's debt, and deposited

the check.    Id. at 598.   We held that the trustee was then

estopped from asserting that Rosen's payment did not entitle him

to his pension.    Id.   By contrast, in Gridley v. Cleveland

Pneumatic Co., 924 F.2d 1310 (3d Cir. 1991), Gridley, while

continually and totally disabled in the hospital, increased his

life insurance coverage under a plan that specifically required

active, full-time status for such an increase.     Although the

employer deducted additional amounts from his salary to cover the

increase, we found that extraordinary circumstances did not exist

when the insurance carrier refused the additional amount.       Id. at
1319 (citing Hozier v. Midwest Fasteners Inc., 908 F.2d 1155,

1165 n. 10 (3d. Cir. 1990).
            Under the facts of Smith, which are similar to our case

here, we held that the fact finder could determine that

extraordinary circumstances were established.    Smith, 6 F.3d at

142.     In Smith the hospital repeatedly made written and oral

assurances that Mrs. Smith had a specific type of coverage.        Id.

Ironically, here we have another hospital misrepresenting the

type of coverage for which recipients could enroll.     Capital

Health compounded its error by reassuring Mrs. Curcio that she

was covered in the amount of $400,000 after the accidental death

of her husband.    In the face of such a tragic loss there is a

certain degree of solace in knowing that financial woes are not

on the horizon.    Although it was not in Capital Health's control,

John Hancock contributed to the anguish by first confirming the

coverage Mrs. Curcio expected and then disclaiming that such

protection would be forthcoming.

            The roller coaster did not stop there.   Capital Health

supported Mrs. Curcio's claim to the point of encouraging her to

file suit, even offering to pay her legal fees.      It retained

outside counsel to review the matter and offered his services to

her without charge. It continually urged John Hancock to honor

the supplemental AD&D, despite John Hancock's refusal.      Somewhere

along the way Capital Health had a change of heart, for they now

argue that supplemental AD&D was never offered in the first

place.

            These events in our view are demonstrative of

extraordinary circumstances.    Thus, having satisfied the elements

of her equitable estoppel claim and there being no reason to
remand for further factual development, we conclude that Mrs.

Curcio has established Capital Health's liability to her in the

amount of $150,000.19   Alternatively, we now briefly address Mrs.

Curcio's argument regarding breach of fiduciary duty.



                                VI.

          In Fischer we held that a plan administrator may not

materially misrepresent, either negligently or intentionally,

modifications to an employee pension benefits plan.     "Put simply,

when a plan administrator speaks, it must speak truthfully."

Fischer, 994 F.2d at 135.   See also Bixler v. Central Pa.

Teamsters Health & Welfare Fund, 12 F.3d 1292, 1300 (3d Cir.

1993) (discussing fiduciary's duty not to misinform); Kurz v.

Philadelphia Elec. Co., 994 F.2d 136, 139 (3d Cir. 1993)

(discussing the holding in Fischer).   We further held in Fischer

that material misrepresentations would subject a plan

administrator to liability for breach of its fiduciary duty.

Fischer, 994 F.2d at 133-34 (citing Payonk v. HMW Indus., Inc.,

883 F.2d 221 (3d Cir. 1989)).   We have just found Capital Health

responsible for making material misrepresentations for purposes

19
 .        The dissent suggests, inter alia, that we should remand
to the district court for factfinding on the elements of
equitable estoppel. We note, however, that the parties do not
dispute the facts. The parties stipulated that the district
court adjudicate all claims without trial solely on the basis of
the written record, including the resolution of any material
issues of fact. We are of the view that reasonable minds could
not differ on the establishment of the elements of equitable
estoppel in this case. Accordingly, it is appropriate for us to
require the district court to enter judgment.
of an equitable theory of relief.       It is thus a short step to

conclude that Capital Health breached its fiduciary duty.

            Our analysis rests on the notion that a fiduciary is

required to "discharge [its] duties with respect to a plan solely

in the interest of the participants and beneficiaries."       29

U.S.C. § 1104(a)(1).   See Fischer, 994 F.2d at 133.      Clearly

Capital Health did not do so.    Therefore, we hold that Mrs.

Curcio's alternate argument provides additional support for our

conclusion that Capital Health is liable to Mrs. Curcio for the

$150,000 in supplemental AD&D.



                                 VII.

            On the basis of the foregoing, we will reverse in part

and affirm in part the district court's order.       We will reverse

that part of the order which denied John Hancock's motion for

summary judgment and granted it in favor of Capital Health.          We

will affirm that part of the court's order which granted Mrs.

Curcio's motion for summary judgment and entered judgment in her

favor, but we will reverse the judgment entered against John

Hancock and enter it against Capital Health in the amount of

$150,000.
McKELVIE, District Judge, dissenting.

            I agree that the district court should grant summary

judgment in favor of John Hancock.    However, I believe that this

court should remand the claims against Capital Health for further

proceedings.

            One could summarize the facts in this case as follows.

Capital promised its employees, including Dr. Curcio, a package

of benefits.    Capital promised to set up a plan, to provide free

life and AD&D insurance through the plan, and to make available

the opportunity to purchase supplemental insurance.      Capital

named itself the "Plan Administrator," and took on the

responsibility of describing the terms of the plan to the

beneficiaries.    Capital negotiated an insurance contract with

John Hancock.    Hancock had no direct contact with the

beneficiaries.    Capital collected payments from the employees,

added its own contribution, and sent Hancock a lump sum payment

every month.    The plan owns no relevant assets other than its

contract with Hancock.    Dr. Curcio purchased as much life and

AD&D insurance as was available, and named his wife as

beneficiary.    Mrs. Curcio alleges, and Capital denies, that the

supplemental insurance Capital promised to make available

includes an additional $150,000 of AD&D coverage.    Regardless of

what Capital may have promised its employees, Hancock's contract

with Capital does not obligate Hancock to pay supplemental AD&D

benefits.

             Procedural Posture and Standard of Review
          In the district court, the parties filed motions for

summary judgment.   The parties also stipulated that the district

court could adjudicate all claims based solely on the written

record without a trial, including the resolution of any material

issues of fact.   The district court found as a matter of law that

Capital is not liable and Hancock is liable.    The district court

then entered summary judgment in favor of Mrs. Curcio and against

Hancock, and in favor of Capital.    The district court did so

without resolving the remaining issues of fact.

          Entry of summary judgment is only appropriate if when

viewing the evidence in the light most favorable to the non-

moving party, there is no genuine issue of material fact such

that a reasonable factfinder could return a verdict for that

party.   Slip op. at 7-8.   This court's review of an order

granting summary judgment is plenary.    Fischer v. Philadelphia

Elec. Co., 994 F.2d 130, 132 (3d Cir. 1993), cert. denied, 114

S.Ct. 622 (1993).   If genuine issues of material fact remain

unresolved, they should be resolved by the trier of fact.     The

district court is the trier of fact in this case.    An appellate

court should not act as the factfinder, even where all evidence

comes from documents.   See Fed. R. Civ. P. 52(a) ("Findings of
fact [by a trial judge], whether based on oral or documentary

evidence, shall not be set aside unless clearly erroneous . . .

.").

                    Enforcement of Plan Benefits

          Mrs. Curcio argues that Capital promised to make

available $150,000 in supplemental AD&D coverage, and that this
promise is enforceable under the benefits enforcement section of

ERISA.   See 29 U.S.C. § 1132(a)(1)(B) ("A civil action may be

brought . . . by a participant or beneficiary . . . to recover

benefits due to him under the terms of his plan, to enforce his

rights under the terms of the plan, or to clarify his rights to

future benefits under the terms of the plan . . . .").   Capital

argues that it did not make such a promise, and that in any event

its promises are unenforceable because Capital is neither a plan

nor a fiduciary.   The district court, relying on Gelardi, agreed

with Capital that ERISA permits liability only against plans and

fiduciaries.   See Gelardi v. Pertec Computer Corp., 761 F.2d

1323, 1324-5 (9th Cir. 1985).

          I believe that ERISA does permit a person to sue an

employer to enforce contractual promises made by the employer,

regardless of whether or not the employer is a plan or a

fiduciary.   See Murphy v. Heppenstall Co., 635 F.2d 233 (3d Cir.

1980) (enforcing contractual rights against an employer where the

plan is not a party), cert. denied, 454 U.S. 1142 (1982).    None

of the sections of ERISA cited by the Gelardi court give any

limitation on who may be sued.   See Lee v. Prudential Ins. Co. of
America, 673 F. Supp. 998, 1003 (N.D.Cal. 1987).   Indeed, 29

U.S.C. § 1132(d) expressly contemplates that a person other than

a plan may be held liable.   One of Congress' primary purposes for

enacting ERISA is "to protect contractually defined benefits."

Firestone Tire & Rubber Co. v. Bruch, 489 US 101, 113 (1989).    I

believe that permitting employees to sue their employers for

allegedly breaking promises relating to a benefits plan is
neither novel nor contrary to Congress' intent.     See Sprague v.

General Motors Corporation, 768 F. Supp. 605, 612 (E.D.Mich.

1991).

             There is a genuine issue of fact regarding whether

Capital promised to supply the Curcios with $150,000 of AD&D

coverage.    The task of determining the terms of a plan, and

interpreting those terms, should be left in the first instance to

the trial court.     See Alexander v. Primerica Holdings, Inc., 967

F.2d 90, 96 (3d Cir. 1992).    I would therefore remand the case to

the district court for further findings of fact.

                          Equitable Estoppel

            I disagree with the majority's decision to grant

summary judgment against Capital on the equitable estoppel cause

of action.    Mrs. Curcio has not established that there is no

genuine issue of material fact as to all elements of this claim.

            An ERISA beneficiary may recover benefits under an

equitable estoppel theory "upon establishing a material

representation, reasonable and detrimental reliance upon the

representation, and extraordinary circumstances."    Smith v.
Hartford Ins. Group, 6 F.3d 131, 137 (3d Cir. 1993); cf.

Restatement, Second, Contracts § 90 (common law doctrine of

promissory estoppel).    Mrs. Curcio testified by affidavit that in

the fall of 1990 her husband told her that he had seen a video

tape at work, the video tape described his insurance benefits,

and it was his understanding that these benefits included extra

AD&D insurance.    The majority finds that the representations made

on this tape were material, that the Curcios reasonably relied on
these representations to their detriment, and that extraordinary

circumstances exist in this case.   The district court did not

make findings on these questions.

          A trier of fact could find that it would not be

reasonable for the Curcios to rely on the representations in the

video presentation.   The majority quotes from a pamphlet which

Capital distributed to its employees.   Slip op. at 22-23.    A

section of this pamphlet, titled "GROUP LIFE & AD&D Insurance

Coverages," contains a subsection titled "An Opportunity to

Purchase Supplemental Amounts of Insurance Coverages."     The first

sentence of this subsection states, "Through Choice Plus, you can

purchase additional amounts of Group Life insurance at low group

rates."   There is no mention of any opportunity to purchase

additional amounts of AD&D.   Louise Reich, an employee of

Capital, testified by affidavit that Dr. Curcio would have

received a copy of a "Physician Fringe Benefit Summary."     The

Summary states that a physician may purchase "additional

supplemental life," but does not mention any opportunity to

purchase additional AD&D.   A trier of fact may, or may not, find

it reasonable to rely on one's memory of a taped presentation

which may be in conflict with written materials.

          To establish the elements of detrimental reliance, a

plaintiff must show that the defendant's representations induced

action or forbearance, and that the plaintiff was harmed by this

action or forbearance.   Restatement, Second, Contracts § 90; see
also Gridley v. Cleveland Pneumatic Co., 924 F.2d 1310, 1319 (3d

Cir. 1991), cert. denied, 111 S.Ct. 2856 (1991).   Mrs. Curcio has
failed to present any evidence of detrimental reliance.    The

majority, finding that the Curcios did detrimentally rely on

Capital's representations, seems to employ the following

reasoning: Mrs. Curcio testified that she and her husband

believed they had the opportunity to purchase supplemental AD&D

insurance through Capital's benefits program.    Therefore, they

had the opportunity to purchase additional insurance through an

independent insurance carrier.    Therefore, they would have

purchased additional AD&D coverage if only they had known that

the death benefits provided by Hancock totalled $250,000, and not

$400,000.   See slip op. at 24-26.

            As in Smith, there is no evidence that the Curcios

could have obtained AD&D coverage from an independent insurance

carrier.    Cf. Smith, 6 F.3d at 137 ("the Smiths' conclusory

allegations that they could have obtained alternative coverage,

without more, were insufficient to withstand summary judgment").

Furthermore, there is no evidence that the Curcios had any

intention of seeking insurance from an independent carrier.      Mrs.

Curcio has not proven that representations in the video tape

caused detrimental reliance; there is no evidence that the

representations induced any act or forbearance.

            The majority concludes that extraordinary circumstances

exist in this case, in part because it finds that the

inconsistent positions taken by the defendants after Dr. Curcio's

death forced Mrs. Curcio to embark on a roller coaster ride of

anguish.    Slip op. at 26-27.   Several aspects of this portion of

the majority's opinion are troubling.    First, there seems to be
no standard for determining what makes an event "extraordinary,"

nor does the majority attempt to define a standard.      It appears

that when courts first recognized equitable estoppel as a cause

of action in ERISA cases, the element of "extraordinary

circumstances" was added in order to protect the actuarial

soundness of pension funds.    See Rosen v. Hotel and Restaurant

Emp., Etc., 637 F.2d 592, 598 (3d Cir. 1981), cert. denied, 454

U.S. 898 (1981); Phillips v. Kennedy, 542 F.2d 52, 55 n. 8 (8th

Cir. 1976).    In a case where a fund is a defendant, a court could

at least balance the desire to make the plaintiff whole against

the need to ensure that the fund had sufficient assets to satisfy

its obligation to future claimants.    Here, where no fund is

involved, the nebulous term "extraordinary" loses what definition

it had, as there is no longer any stated purpose for the

existence of the element.

            Second, the case for finding extraordinary

circumstances seems rather weak.    In support of its conclusion

that extraordinary circumstances exist, the majority makes the

following arguments: (1) Capital misrepresented the Curcio's

insurance coverage; (2) Capital repeated that mistake after Dr.

Curcio died; (3) Hancock made the same mistake after Dr. Curcio

died; (4) these mistakes caused Mrs. Curcio to experience

anguish; and (5) for a while, Capital attempted to help Mrs.

Curcio recover the disputed $150,000 from Hancock.    See slip op.

at 26-27.   As every plaintiff in an estoppel case must prove

detrimental reliance on a material representation, the fact that

Capital made a misrepresentation could not possibly be an
extraordinary event.    The fact that Capital repeated its mistake

after Dr. Curcio died may be unfortunate, but it is beyond

dispute that at that point it was too late to make other

insurance arrangements.     There is no evidence in the record that

Mrs. Curcio suffered anguish, or any other harm, from the

mistakes made after Dr. Curcio's death.    It seems strange to

penalize Capital for mistakes made by Hancock, and even stranger

to penalize Capital for attempting to help Mrs. Curcio recover

the benefits she claimed.

            Third, the existence of extraordinary circumstances

should be determined by the trier of fact.    See Smith, 6 F.3d at

142.    I do not think that the circumstances identified by the

majority are so extreme in this case as to warrant this court

finding that extraordinary circumstances exist.

            Finally, even if Mrs. Curcio could prove all elements

of her estoppel claim, the recovery may be less than $150,000.

Full enforcement of a promise is often appropriate in an estoppel

case.    However, depending on the facts of the case, it may be

appropriate to limit the recovery.    See Restatement, Second,

Contracts § 90 Comment d.    Equitable estoppel is an equitable

doctrine, and is subject to the discretion of the trial court.

See Bechtel v. Robinson, 886 F.2d 644, 647 (3d Cir. 1989) ("when
a trial court makes an equitable assessment after the operative

facts are established, we review that assessment for abuse of

discretion."); Plucinski v. I.A.M. Nat. Pension Fund, 875 F.2d

1052, 1053 (3d Cir. 1989) ("because the district court did not

address the equities . . . we remand for a development of the
record, and for the district court to exercise its equitable

discretion").

                           Misrepresentation

          The majority states, correctly, that "a plan

administrator may not materially misrepresent, either negligently

or intentionally, modifications to an employee pension benefits

plan."   Slip op. at 28.   The majority then finds that Mrs. Curcio

established her claim for negligent misrepresentation.     The

majority makes no attempt to show why summary judgment is

appropriate on the issue of whether or not Capital made its

representations negligently or intentionally.    The trier of fact

should determine these questions in the first instance.

          Furthermore, even if Mrs. Curcio does establish all

elements of this cause of action, it is far from clear that she

should receive an award of $150,000.     The amount of damages for

negligent misrepresentation by a fiduciary is not necessarily

measured by the content of the misrepresentation, but by the

damage caused to the beneficiary or by the profit received by the

fiduciary as a result of the misrepresentation.    Restatement,

Second, Trusts § 205 Comment a.    There is no evidence that

Capital gained by its representations.    As discussed above, there

is also no evidence that Mrs. Curcio would have received greater

death benefits but for Capital's misrepresentations.    Therefore,

it is inappropriate to direct the district court to award

$150,000 on this claim on a motion for summary judgment.
                           Conclusion

          The trial court granted Mrs. Curcio's motion for

summary judgment against Hancock, and granted Capital's motion

for summary judgment against Mrs. Curcio.   The majority disagrees

with both decisions, yet instead of reversing both decisions it

purports to affirm the judgment in favor of Mrs. Curcio and

reverse on the question of which defendant loses.   I would

reverse both grants of summary judgment, direct that summary

judgment be entered in favor of Hancock and against Mrs. Curcio,

and remand for further proceedings on Mrs. Curcio's claims

against Capital.

          I respectfully dissent.
