                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-9-1996

In Re: Unisys Corp
Precedential or Non-Precedential:

Docket 96-1100,96-1156




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Recommended Citation
"In Re: Unisys Corp" (1996). 1996 Decisions. Paper 44.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/44


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                     UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                         Nos. 96-1100 and 96-1156


 IN RE:   UNISYS CORP. LONG-TERM DISABILITY PLAN ERISA LITIGATION

       JOHN B.G. ROBERTS, III; PATTY GUERRANT, as Personal
        Representative of the Estate of Jackson Guerrant;
         RICHARD STARK; MARGARET C. ROELLER, as Personal
         Representative of the Estate of Eugene Roeller,
       as representatives of the certified plaintiff class,
         and JOHN B.G. ROBERTS, III, acting individually,

                                            Appellants in No. 96-1100


           FRANCES MCFEELY, Administratrix of the Estate
                          of John McFeely

                                            Appellant in No. 96-1156


          On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                             (MDL-938)


                         Argued:   August 15, 1996

          BEFORE:    GREENBERG and ALITO, Circuit Judges, and
                    DEBEVOISE, Senior District Judge*

                       (Filed:     October 9, 1996)




*Honorable Dickinson R. Debevoise, United States Senior District
Judge for the District of New Jersey, sitting by designation.

Leonard N. Bebchick (Argued)
888 Sixteenth Street, NW
Washington, DC   20006

    Attorney for Appellants, John B.G. Roberts, III;
    Patty Guerrant, as Personal Representative of the
    Estate of Jackson Guerrant; Richard Stark;
    Margaret C. Roeller, as Personal Representative of
    the Estate of Eugene Roeller, as representatives of
    the certified plaintiff class, and John B.G. Roberts, III,
    acting individually,
Spencer Steele
3000 Marcus Avenue, Suite 3E3
Lake Success, NY   11042

    Attorney for Appellant, Frances McFeely, Administratrix
    of the Estate of John McFeely

Laurence Z. Shiekman
Brian T. Ortelere (Argued)
Pepper, Hamilton & Scheetz
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA   19103-2799

Joseph A. Teklits
Unisys Corporation
P.O. Box 500, C2NW14
Blue Bell, PA   19424-0001

    Attorneys for Appellees, Unisys Corporation and
    The Unisys Long-Term Disability Plan

Robert C. Johnson
Gerald E. Fradin (Argued)
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, IL   60606

    Attorneys for Appellee, The Travelers Insurance Company




                       OPINION OF THE COURT


DEBEVOISE, Senior District Judge.

    This appeal requires interpretation of the "Income from
Other Sources" provision of the Unisys Corporation Long Term
Disability Plan (the "LTD Plan" or the "Plan"). The provision
advises the Plan participant that the "benefits you receive may
be adjusted if you receive pension benefits from ... other
sources."
    Appellants, employee-participants in the Plan, contend that
only benefits they themselves receive from other sources may be
deducted from Plan benefits. Unisys, on the other hand, contends
that deductions must be made not only for benefits the
participants receive from other sources but also for benefits
which participants' dependents receive from other sources.
    The district court, agreeing with Unisys, granted summary
judgment in favor of Unisys and in favor of Travelers Insurance
Company, the administrator of claims requests. This appeal
followed.
    The district court had subject matter jurisdiction under 28
U.S.C. § 1331 (federal question jurisdiction) and under 29 U.S.C.
§§ 1132(e)(1) and 1132(f) (jurisdiction of participants' claims
under the Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. § 1001 et seq.). We have jurisdiction over
the appeal pursuant to 28 U.S.C. § 1291. Review of the grant of
summary judgment is plenary.
          I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
                      A. Factual Background
    Unisys is the product of the merger in September 1986 of the
Burroughs Corporation ("Burroughs") and the Sperry Corporation
("Sperry"). Each of those corporations had, prior to the merger,
long term disability ("LTD") plans. Each of the former plans
provided that the employer must adjust benefits by (i) the Social
Security disability benefits paid to the participants and (ii)
the Social Security benefits to which the participants' spouses
and children were entitled on account of the participants'
disability.
    The language providing for each kind of deduction was
explicit. The Burroughs LTD Plan effective January 1, 1984
provided that monthly benefits were to be reduced by the amount
of Other Income Benefits. Other Income Benefits included
"[i]ncome benefits available under ... [t]he Federal Social
Security Act ... including benefits available thereunder to or
for any and all of your dependents ... on account of your
disability...." (App. at 533-34). (Emphasis added).
    The Sperry LTD Plan called for a reduction from monthly
benefits of Other Income Benefits. "Other Income Benefits"
included:
         5. The amount of disability or retirement benefits
             under the United States Social Security Act, The
             Canada Pension Plan, or the Quebec Pension Plan,
             or any similar plan or act, as follows:

             a.   disability benefits for which:

                     i.   you are eligible, and

                   ii.    your spouse, child or children are
                          eligible because of your disability;
                          ....

(App. at 565). (Emphasis added).
    Upon the merger of Burroughs and Sperry the resulting
corporation, Unisys, proceeded to draft a new plan for the
employees of the constituent corporations. The new LTD Plan
became effective on April 1, 1988, but the drafting process
continued for a considerable period of time thereafter.
    In August 1988 Travelers, at Unisys' request, prepared and
forwarded to Unisys a draft of the proposed text of the LTD Plan.
The draft, in the form of a marked-up printer's proof dated June
20, 1988, contained an "Income from Other Sources" text that
expressly provided for the offset of LTD benefits by the amounts
of dependent Social Security benefits. (App. at 455-56).
     At the same time Unisys' Director of Benefit Programs and
Planning, Mary Massman, undertook to draft a number of benefit
plans including a new LTD Plan. She drew heavily upon the
Burroughs and Sperry plans, "cut and pasted" them and produced
the new Unisys LTD Plan document. This document was adopted
rather than the proof which Travelers had provided.
     Under the Unisys LTD Plan as prepared by Ms. Massman,
employees could elect to participate by agreeing to pay the
applicable rates for coverage. The Plan is fully funded by
employee contributions. Participants qualifying for LTD benefits
would receive "66-2/3% of your pay if you are totally disabled."
Benefits "continue for so long as you are totally disabled, until
you recover or reach the maximum benefit period." (App. at 316-
17).
     The income from other sources language differed
significantly from the language of the Sperry and Burroughs Plans
and from the language of the Travelers proof. The new LTD Plan
did not provide in so many words for a deduction of Social
Security benefits paid to dependents. Its income from other
sources provision read:
     The LTD you receive may be adjusted if you receive
     pension benefits from Unisys and/or disability income
     from other sources, such as Social Security, Workers'
     Compensation or state disability benefits. If the
     combination of benefits from these sources and the
     Unisys LTD Plan equals more than 75% of your pay, the
     Unisys LTD benefit will be reduced to bring the total
     benefit from all sources to this 75% level. Regardless
     of this feature, if you qualify for an LTD benefit, you
     will receive at least $100 per month from the Plan.

(App. at 316). (Emphasis added).
    At her deposition Ms. Massman testified that this language
was intended to include adjustments for Social Security benefits
received by dependents as well as by the disabled employee:
    A. Okay. It was always the intent of the company that
        if income was payable by virtue of a disability of
        one of our participants that that income would be
        taken into account in determining the offset.
        Because it was only payable by virtue of the fact
        that the person was disabled.

         Therefore, it didn't seem necessary to stipulate the
         difference between the two. Because it was only
         being paid because our participant was disabled.

         So it was always our intent to offset the individual
         and the family Social Security disability benefit.

(App. at 495).

    A.   Because an individual or a family member would have
         received no Social Security absent that disability.
         To me it was a source of income, that was the sole
         result of the fact that our participant was disabled.
         Therefore, it did not seem necessary to specify
         separately 'family' or 'individual'.

                              .   .   .

    Q.   As I understand your testimony, the words 'family' or
         'dependent' were not used because you just didn't feel
         it was necessary?

    A.   That's correct.

    Q.   All right.   The matter was clear.

    A.   It was very clear to me.

(App. at 488).

    Unisys, as Plan administrator, had the right to interpret
the Plan's terms:
    The Plan administrator has authority to control and manage
    the operation and administration of the plans.

                              .   .   .

    The administrator for processing benefit requests will pay
    benefits in accordance with the terms of the plans. All
    final decisions with respect to the administration and
    interpretation of the terms of the plan, however, remain
    with the plan administrator.

(App. at 320A, 320B).

    After the Plan became effective in April 1988 Unisys
distributed explanatory materials to its employees. Its 1991
Enrollment Guide issued in the fall of 1990 provided the first
notice to all employees that LTD benefits were reduced by
dependent Social Security benefits. There was no modification at
that time of the text of the LTD Plan or of its Summary Plan
Description. The 1992 Enrollment Guide did not contain a
comparable notification.
    In the spring of 1993, with effect from January 1, 1993,
Unisys republished its LTD Plan. This document expressly states
that benefits are subject to reduction by amounts of dependent
Social Security awards. Unisys asserts that the new language
expressed a continuation, rather than a change, of an existing
provision.
    From the outset, upon Unisys' instructions, Travelers
reduced benefits payable under the Plan by the amounts of Social
Security benefits payable not only to Plan participants but also
by the amounts payable to dependents. Until early 1991, when
questioned about the appropriateness of the deductions on account
of dependent benefits, Travelers supported its practice by
sending to the claimant a copy of the printer's proof,
representing that it constituted the text of the LTD Plan. This
proof was not the text of the Plan and had never been adopted by
Unisys.
                      B. Procedural History
    The present proceedings evolved from two complaints filed on
behalf of Unisys employees who claimed that their disability
benefits had been wrongfully reduced on account of Social
Security benefits awarded to their dependents. The Roberts case,
a class action, was filed in the District of Columbia. The
McFeely case, also a class action, was filed in the Supreme Court
of the State of New York.
    The Roberts complaint asserted four claims: Claim I sought
recovery from the Plan for its reduction of LTD benefits contrary
to Plan provisions. Claim II sought to require Unisys and
Travelers to make the Plan whole for the payment on the ground
that it was occasioned by their breach of fiduciary duties in
administering the Plan. In Claim III Roberts sought on his own
behalf injunctive relief requiring Unisys and Travelers to
establish appeals procedures which comply with applicable law.
In Claim IV Roberts sought on his own behalf statutory penalties
for Unisys' failure timely to provide requested Plan documents.
    By stipulation and order in the Roberts case the class was
certified, the case was transferred to the Eastern District of
Pennsylvania, and four additional persons were permitted to
intervene as class representatives.
    The McFeely action, which asserted claims which tracked
Claims I and II of the Roberts case, was removed to the Eastern
District of New York. The Panel on Multi-District Litigation
ordered it transferred to the Eastern District of Pennsylvania
where it was consolidated with the Roberts case.
    After completion of discovery the Roberts class
representatives moved for summary judgment on class Claim I.
Unisys moved for summary judgment on class Claims I and II.
Travelers moved for summary judgment on class Claim II, the only
claim asserted against it. The district Court rendered a
decision in January 1994.
    The Unisys LTD Plan provided that "[t]he Benefit you receive
may be adjusted if you receive pension benefits from Unisys
and/or disability income from other sources, such as social
security...." The district court found that "the language in
dispute is not facially ambiguous" and thereupon engaged in an
analysis prescribed in Mellon Bank, N.A. v. Aetna Business
Credit, Inc., 619 F.2d 1001 (3d Cir. 1980). Applying
Pennsylvania law, Mellon Bank ruled that it is the obligation of
the judge "to hear the proffer of the parties and determine if
there is objective indicia that, from the linguistic reference
point of the parties, the terms of the contract are susceptible
of differing meanings." Id. at 1011. The object of the district
court's inquiry, of course, was to determine if, despite its
facial lack of ambiguity, the language "benefits you [the Plan
participant] receive" was reasonably susceptible of meaning
"benefits you [the Plan participant] and your dependents
receive".
    The district court relied upon several linguistic reference
points: (i) "... the linguistic reference point is, in part, the
manner in which dependent social security benefits had been
treated in the prior plans of Burroughs and Sperry." (Slip Op.
at 5); (ii) "... another linguistic reference point is the social
security benefits available to a plan participant, what triggers
their availability and the purpose they serve." (Slip Op. at 5);
(iii) "[w]hen reading the deposition of Mary Massman, the
Director of Benefit Programs and Planning for Unisys, and the
person who drafted the present plan, the linguistic reference
point of Unisys' interpretation that social security benefits
include primary as well as dependent benefits, is further
clarified." (Slip Op. at 6).
    Relying on these "linguistic reference points", the district
court concluded, "... the term 'you receive' as it appears in
'Income From Other Sources' is subject to reasonable alternative
interpretations, one of which is set forth in plaintiff's brief,
the other in defendant's brief. In short, the words in the above
text are ambiguous." (Slip Op. at 7).
    Having found ambiguity, the district court noted that the
Plan provides that all decisions with respect to its
interpretation remain with Unisys, the Plan administrator. The
court applied the deferential standard of review prescribed by
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), to the
effect that in these circumstances a determination of the plan
administrator must be upheld unless it was arbitrary and
capricious. The court found that Unisys' interpretation was not
arbitrary and capricious.
    Having reached these legal and factual determinations the
district court denied plaintiffs' motion for summary judgment on
Claim I (the Plan interpretation claim) and granted Unisys'
motion for summary judgment on that claim. Since Claim II
against Unisys and Travelers (the breach of fiduciary duty claim)
was based upon the premise that Unisys and Travelers acted
contrary to the clear and unambiguous provisions of the Plan,
that claim could not survive in light of the disposition of Claim
I. Therefore the district court granted Unisys' and Travelers'
motions for summary judgment on Claim II.
    We conclude that the district court erred in its application
of Mellon Bank and its progeny and that the language of the
"Income From Other Sources" provision of the Unisys LTD Plan is
unambiguous. It requires (for the period prior to the Plan's
January 1, 1993 amendment) adjustment for benefits which the Plan
participants receive from other sources; it does not require (or
permit) adjustment for benefits which participants' dependents
receive from other sources. Consequently the order granting
summary judgment in favor of Unisys on Claims I and II and the
order granting summary judgment in favor of Travelers on Claim II
will be reversed. The case will be remanded with directions to
enter judgment in favor of the class plaintiffs on Claim I and
for further proceedings on Claim II and the remaining areas of
dispute on Claim III in accordance with this opinion.
                          II. DISCUSSION
    The provision which is at issue in this case reads:
         The LTD benefit you receive may be adjusted if you
    receive pension benefits from Unisys and/or disability
    income from other sources, such as Social Security....

    Whether an ERISA plan is ambiguous is a question of law.
Alexander v. Primerica Holdings, Inc., 967 F.2d 90, 92 (3d Cir.
1992). "The strongest external sign of agreement between
contracting parties is the words they use in their written
contract. Thus, the sanctity of the written words of the
contract is embedded in the law of contract interpretation."
Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001,
1009 (3d Cir. 1980).
    As the district court acknowledged, "the language in dispute
is not facially ambiguous." On their face the words "benefits
you receive" mean benefits which the Plan participants receive.
They do not mean benefits which the Plan participants and the
Plan participants' dependents receive. This usage is consistent
with the language used throughout the Plan. "You" refers to the
participant. When a dependent is referred to, the reference is
explicit.
    In Mellon Bank the court recognized that there may be some
situations where the parties use words differently from their
common meaning. To address that possibility the judge will "hear
the proffer of the parties and determine if there is objective
indicia that, from the linguistic reference point of the parties,
the terms of the contract are susceptible of different meanings."
Id. at 1011. However, the court warned that "our approach does
not authorize a trial judge to demote the written word to a
reduced status in contract interpretation. Although extrinsic
evidence may be considered under proper circumstances, the
parties remain bound by the appropriate objective definition of
the words they use to express their intent.... Trade terms,
legal terms of art, numbers, common words of accepted usage and
terms of a similar nature should be interpreted in accord with
their specialized or accepted usage unless such an interpretation
would produce irrational results or the contract documents are
internally inconsistent." Id. at 1013.
    Benefit offsets are common features of LTD plans. There is
an almost even split among Fortune 500 company LTD plans between
those which provide for offsets of only the employee's Social
Security disability benefits and those which also provide for the
offset of family Social Security disability benefits. (App. at
619). It is a simple task of draftsmanship to specify which
offsets are applicable in any particular plan.
    There is no evidence in the record which supports Unisys'
argument that the words "benefits you receive" are susceptible of
the meaning "benefits you and your dependents receive." Two of
the linguistic reference points upon which the district court
relied to find ambiguity (the language of the prior plans and
Social Security disability benefit practices) actually support
appellants' position that there is no ambiguity in the language
used. The third linguistic reference point upon which the court
relied is the testimony of the drafter of the Plan (Ms. Massman)
that she intended to provide for the offset of dependent
benefits.
    The manner in which dependent social security benefits had
been treated in the prior plans of Burroughs and Sperry is not a
linguistic reference point justifying a departure from the facial
meaning of the Unisys Plan. Both the Burroughs and the Sperry
plans contained language which specifically provided for
dependent offsets. The absence of such language in the Unisys
Plan simply confirms the plain meaning of "benefits you receive."
It does not include dependent benefit offsets.
    Nor are the Social Security benefits available to plan
participants a linguistic reference point creating ambiguity in
the Unisys Plan. Social Security disability benefits are of two
kinds - those awarded to the disabled person and those awarded to
the disabled person's dependents. The statutory provisions grant
directly to wives and children (including divorced wives and
children not living in the household of the disabled person)
Social Security disability benefits. 42 U.S.C. §§ 402(b) and
402(d). The statute provides that they "shall be entitled" as
individuals in their own right to such benefits, a right spelled
out in the regulations - 20 C.F.R. §§ 404.330-404.333 for wives
and 20 C.F.R. §§ 404.351-404.369 for children. These payments
are deemed to be the property of the wife or child.
    Because of the twofold nature of Social Security disability
awards - primary and dependent - LTD plans must specify whether
one or both kinds of awards are to be offset from plan benefits.
The Social Security disability award structure does not create
ambiguity in the Unisys Plan. Rather it confirms that the Plan's
language unambiguously provides for the offset of primary Social
Security benefits and not dependent benefits.
    To rely upon Ms. Massman's testimony as a linguistic
reference point is to fall into the trap which Mellon Bank warned
against: "... in order to interpret contracts with some
consistency, and in order to provide contracting parties with a
legal framework which provides a measure of predictability, the
courts must eschew the ideal of ascertaining the parties'
subjective intent and instead bind parties by the objective
manifestations of their intent." Id. at 1009. The fact that
while Ms. Massman was cutting and pasting the Burroughs and
Sperry plans she intended to include dependent benefits in
"benefits you receive" is irrelevant. If the Plan language were
in fact ambiguous the subjective intent of the Plan's sponsor
might, along with other evidence, be relevant in ascertaining its
meaning. Alexander v. Primerica Holdings, Inc., 967 F.2d 90, 96
(3d Cir. 1992). However, the undisclosed, subjective intent of
the draftsman cannot be relied upon to render unambiguous
language ambiguous.
    Unisys argues that Plan participants "both literally and
figuratively 'receive' their dependents' Social Security
benefits." (Unisys Br. at 6). Unisys notes that in the usual
case a participant will benefit from the fact that his dependent
receives a Social Security award because it will assist him in
meeting his support obligation to his dependent. Unisys further
notes that in some situations, such as when a dependent is a
minor, Social Security benefits may be paid directly to the
participant to hold for the dependent.
    These observations do not change the meaning of the Plan
language. If offsets were to be made whenever the Plan
participant benefited from a Social Security award to another
person, the Plan language would have so stated. Not all
dependent Social Security awards result in an incidental benefit
to the disabled plan participant and therefore an offset of that
nature would require an inquiry into the extent a Plan
participant benefited from Social Security awards to his
dependents. Neither Unisys nor Travelers ever conducted such an
inquiry when awarding benefits under the Plan, and the Plan
language does not call for such an inquiry.
    The fact that in some cases a Plan participant may take
custody of the Social Security award made to a dependent does not
mean that the participant receives the award. Disability
benefits paid to family members such as children are designed to
provide the recipient for loss of support he or she sustains
because of the disability of a parent. These awards are the
property of the dependent. Where it appears that a dependent
because of youth or mental or physical condition may be unable to
manage the proceeds of the award, a representative payee will be
appointed if that is determined to be in the best interests of
the beneficiary. 20 C.F.R. §§ 404.2001-404.2030. The
representative payee must use the payments only for the use and
benefit of the dependent consistent with regulatory guidelines
and reporting requirements. 20 C.F.R. §§ 404.2040-404-2045; 20
C.F.R. § 404.2065. The fact that a disabled Plan participant may
be designated as the representative payee does not render him the
recipient of the award.
    Unisys relies heavily on Hopkins v. Cohen, 390 U.S. 530
(1968). In Hopkins the plaintiff's attorney challenged the lower
court's refusal to award him fees for his successful efforts in
securing both primary and dependent social Security benefits.
The applicable statute and regulations permitted the claimant to
seek a fee for his attorney not to exceed 25 percent of "past
benefits due you". (Emphasis added). The district court ruled
that the "past benefits due you" did not include past benefits
due the claimant's dependents which the attorney succeeded in
recovering. The Supreme Court stated "[t]hat seems to us to be
too technical construction of the Act which we need not adopt.
In this instance, proof of the husband's 'claim' results in a
package of benefits to his immediate family; and those benefits
inure to the benefit of the head of the family who files the
'claim'". Id. at 534.
    Hopkins provides no assistance in interpreting the Unisys
LTD Plan. The Court was required to interpret a statute and seek
the intent of Congress in a context far removed from a dispute
over the meaning of an ERISA plan document. The canons of
construction and the methodology of interpretation of a remedial
legislative enactment differ from those applicable to the
interpretation of a contract or trust instrument. E.g.
Appalachian States Low-Level Radioactive Waste Commission v. Hon.
Hazel O'Leary,        F.3d        (3d Cir. 1996). Hopkinsprovides no
support to Unisys' position.
    Thus we have concluded as a matter of law that the language
of the Income From Other Sources provision of the Unisys LTD Plan
is unambiguous. It provides that the benefits which a
participant receives may be adjusted for disability benefits
which the participant himself receives from other sources, such
as Social Security. It does not provide for adjustments for
disability benefits which a participant's dependents receive from
other sources.
    This conclusion requires that the judgment in favor of
Unisys on Claim I must be reversed and that summary judgment on
Claim I must be entered in favor of the plaintiff class.
    The summary judgment in favor of Unisys on Claim I led to
the district court's grant of summary judgment in favor of Unisys
and Travelers on the Claim II breach of fiduciary duty claim.
The breach of fiduciary duty was alleged to have arisen out of
the deduction of dependents' benefits in the face of a Plan
provision which unambiguously permitted the deduction of only the
other benefits of a Plan participant. If the Plan permitted
deduction of dependents' benefits, as the district court found,
Unisys' and Travelers' deduction of such benefits could not have
been a breach of a fiduciary duty.
    The circumstances have changed now that it has been
determined that deduction of dependents' benefits are not
provided for under the Plan and that the deductions for
dependents' benefits which were made in this case were
unauthorized. Unisys and Travelers argue that even in these
circumstances the undisputed facts require that summary judgment
be granted in their favor on Claim II. They urge that an error
in interpreting the Plan is not a breach of a fiduciary duty.
Travelers contends that as a matter of law it was not a fiduciary
and therefore could not be charged with a breach of a fiduciary
duty. These are questions which the district court should
consider in the first instance. The judgment in favor of Unisys
and Travelers on Claim II will be reversed. On remand the
district court will reconsider the motions for summary judgment
on those claims in the light of this opinion and the record
before it.
                         III. CONCLUSION
    The order of the district court granting summary judgment in
favor of Unisys on Claims I and II and the order of the district
court granting summary judgment in favor of Travelers on Claim II
will be reversed. The case will be remanded with directions that
judgment in favor of the class plaintiffs be entered on Claim I
and for further proceedings on Claim II and with respect to the
remaining areas of dispute on Claim III in accordance with this
opinion.
