                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0485n.06

                                         No. 16-2726                                FILED
                                                                              Aug 22, 2017
                         UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

JOHN BUTLER,                                           )
                                                       )
       Plaintiff-Appellant,                            )
                                                       )
v.                                                     )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
FCA US, LLC,                                           )      COURT FOR THE EASTERN
                                                       )      DISTRICT OF MICHIGAN
       Defendant-Appellee.                             )
                                                       )
                                                       )



       Before: GUY, ROGERS, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. John Butler worked for Chrysler for more than 40 years.

He purchased accident insurance through the company, and filed a claim for benefits when a car

crash left him unable to work. Chrysler’s successor, Fiat Chrysler Automobiles US, LLC (whom

we refer to simply as Chrysler) denied the claim through the insurer then administering the

accident-insurance plan, MetLife. Butler then sued Chrysler under the Employee Retirement

Income Security Act of 1974 (ERISA), arguing that he was entitled to benefits and that Chrysler

had wrongfully refused to provide him with plan documents. The district court granted summary

judgment to Chrysler. We affirm.

                                              I.

       Butler was injured in a car crash in July 2008. After the crash, he was diagnosed with

post-traumatic stress disorder, post-concussion syndrome, double vision, and hearing loss.
No. 16-2726, Butler v. FCA US, LLC


Chrysler placed Butler on disability leave until he retired in May 2011. At that point, Butler

began to receive a disability pension.

       Six days after retiring, Butler filed a claim for additional benefits under Chrysler’s

accident-insurance plan. The insurer then administering the plan, MetLife, construed Butler’s

claim as one for “Traumatic Brain Injury Benefit[s]” as defined by the insurance policy in effect

in July 2008. MetLife denied the claim and upheld its decision when Butler appealed. Butler

responded by requesting a copy of the 2008 policy—first from MetLife, and then from Benefits

Express, another company that helped Chrysler administer its employee-benefit plans. Before he

received the policy, Butler consulted the plan’s latest “summary plan description”—a document

that describes the terms of an ERISA plan in terms “calculated to be understood by the average

plan participant.” 29 U.S.C. § 1022(a). Butler wrote to MetLife, asserting that he was entitled to

“Total Permanent Disability Benefit[s]” under the summary. MetLife responded that Chrysler’s

accident insurance did not include such a benefit.

       Butler thereafter brought this lawsuit, alleging (among other things) that Chrysler

improperly denied him benefits in violation of 29 U.S.C. § 1132(a)(1)(B) and failed to provide

him with plan documents in violation of 29 U.S.C. § 1024(b)(4). Chrysler moved for summary

judgment, which the district court granted. The court held that Chrysler’s accident insurance did

not cover total and permanent disabilities, and that nothing in the summary plan description

should have led Butler to believe otherwise. The court also held that Butler’s requests for a copy

of the 2008 policy did not trigger Chrysler’s statutory duty to produce the document. This

appeal followed.




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                                                II.

                                                A.

       We review de novo the district court’s decision that Butler was not entitled to benefits.

McClain v. Eaton Corp. Disability Plan, 740 F.3d 1059, 1064 (6th Cir. 2014).

       A participant in an ERISA plan can sue “to recover benefits due to him under the terms

of his plan.” 29 U.S.C. § 1132(a)(1)(B). A plan’s terms must be memorialized in a “written

instrument.” Id. at § 1102(a)(1). A summary plan description can be part of a plan’s governing

instrument, but only if the summary itself so provides. See Bd. of Trs. v. Moore, 800 F.3d 214,

220 (6th Cir. 2015). Here, the 2007 summary—the one in effect when Butler was injured in July

2008—provides that “[t]his handbook is intended to be the summary plan description as well as

the plan document.” But the summary also states that, if the summary conflicts with the

accident-insurance policy, then “the terms of the . . . policy will prevail.” Thus, if the policy

does not list the benefit that Butler now seeks, he cannot recover it under § 1132(a)(1)(B)—

regardless of whether the summary lists the benefit.

       The document that the parties refer to as the MetLife Certificate is “part of the . . .

policy” that was in effect when Butler was injured. That document lists each of the benefits

included in Chrysler’s accident insurance. A benefit for total and permanent disabilities is not

among them, which means that the policy does not include that benefit. Butler therefore cannot

recover under § 1132(a)(1)(B).

       Butler next argues that the 2007 summary plan description is misleading. If a summary

would lead an average plan participant to believe that a benefit is included when it is not, then a

participant can recover under 29 U.S.C. § 1132(a)(3), which authorizes district courts to remedy




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No. 16-2726, Butler v. FCA US, LLC


“false or misleading” statements in summaries with “appropriate equitable relief.” See CIGNA

Corp. v. Amara, 563 U.S. 421, 438-42 (2011).

       Here, Butler points to two sentences in the 2007 summary that, he says, led him to

believe that Chrysler’s policy covered total and permanent disabilities. First, the summary states

that it is “describ[ing] the [accident-insurance plan] in effect as of April 1, 2004, and the benefits

for . . . accidental injuries sustained on or after that date.” In Butler’s view, that means that every

benefit available in April 2004 was still available in 2007, including the total-permanent-

disability benefit, which was listed in a 2002 summary plan description, and remained part of the

plan after it was amended on April 1, 2004.

       If an average plan participant read only that sentence, we agree that he might be misled.

But we presume that participants read the entire summary, interpreting provisions in context.

See Kolkowski v. Goodrich Corp., 448 F.3d 843, 851 (6th Cir. 2006). The 2007 summary

discusses in detail each benefit included in Chrysler’s accident insurance. The total-permanent-

disability benefit is not mentioned, much less explained. That should have alerted participants

that the benefit was no longer part of the policy. Butler responds that, given the summary’s

reference to the benefits available in 2004, the omission of this benefit might have been a

“drafting gaffe.” Appellant’s Br. at 27. But the 2007 summary recited at least a dozen other

changes to Chrysler’s accident insurance, e.g., a new benefit for injuries sustained in a car

accident where an airbag deploys. That makes reasonably clear that Chrysler removed the total-

permanent-disability benefit deliberately, as one change among many that year.

       Second, Butler contends that the summary’s statement that the “Total Permanent

Disability Benefit . . . may be taxable as ordinary income” implies that the benefit remained part

of the policy. Some plan participants who qualified for the total-permanent-disability benefit



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No. 16-2726, Butler v. FCA US, LLC


before it was removed from the plan, however, might have received their benefit payment

afterward. The warning thus does not imply that the benefit remained available.

       Butler’s final point with respect to benefits is that, in response to Butler’s interrogatories,

Chrysler admitted that the total-permanent-disability benefit was available until February 28,

2008. By that admission, Butler contends, Chrysler conceded that the 2007 summary did cover

total and permanent disabilities. But again, Butler’s inference is mistaken. The policy that was

in effect through February 2008 explicitly covered total and permanent disabilities.            Thus,

Chrysler’s admission was simply an acknowledgment that, up until March 2008, the policy

conflicted with the 2007 summary—and that the policy therefore governed. Once the new policy

took effect, there was no conflict, and the total-permanent-disability benefit became unavailable.

Butler responds that he was not notified when the change took effect on March 1, 2008. But the

2007 summary was itself notice that the benefit would be discontinued. That Butler actually

received several additional months of coverage did not require Chrysler to notify him again when

the extra coverage ended. Butler’s claim for benefits fails.

                                                 B.

       Butler also argues that Chrysler refused to give him plan documents in violation of

29 U.S.C. § 1024(b)(4). Under that provision, if a plan participant requests in writing certain

plan documents—including the “instrument[] under which the plan is established or operated”—

the employer must provide the documents within 30 days. Id.; 29 U.S.C. § 1132(c)(1). If the

employer fails to do so, then a district court “may in [its] discretion” award the participant up to

$100 per day in damages. Id. at § 1132(c)(1). We review for an abuse of discretion a district

court’s decision not to award damages. Cultrona v. Nationwide Life Ins. Co., 748 F.3d 698, 706

(6th Cir. 2014).



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No. 16-2726, Butler v. FCA US, LLC


       As noted above, Butler wrote to MetLife in December 2012, requesting “a copy of the

Group Certificate and the Group Policy” under “which [Butler] was covered on the date of his

accident.” MetLife referred Butler to Benefits Express, another company that helped Chrysler

administer its employee-benefit plans. Butler sent Benefits Express the same letter he had sent

MetLife, but he never heard back from them. Thus he emailed Chrysler directly on February 14

and 22, 2013—both times requesting “information regarding the Total Permanent Disability

Benefit.” On March 11, 2013, Chrysler emailed Butler the MetLife Certificate, which, at the

time Butler was injured, also served as the plan policy.

       Butler first contends that Chrysler violated § 1024(b)(4) because they took three months

to produce the MetLife Certificate. As an initial matter, however, we doubt that Butler’s letters

to MetLife and Benefits Express triggered Chrysler’s duty to produce, which arises only when a

plan participant writes to the employer itself. See, e.g., McCarthy v. Ameritech Pub., Inc.,

763 F.3d 469, 485 (6th Cir. 2014). Moreover, the district court properly considered whether the

delay prejudiced Butler. Cultrona, 748 F.3d at 708. And Butler presented no evidence of

prejudice.

       Butler also contends that, although he possessed the 2007 summary, he was entitled to the

2007 policy itself, which Chrysler failed to produce. But an employer need produce a document

only if a participant provides “clear notice” that he wants it. Cultrona, 748 F.3d at 707.

In Butler’s letters, he requested only the policy under “which [he] was covered on the date of his

accident”—that is, the 2008 policy. And in Butler’s emails, he did not request any specific

documents at all. Moreover, given that the 2007 policy was not in effect when Butler was

injured, he could not recover benefits under that policy. Chrysler’s failure to produce the




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No. 16-2726, Butler v. FCA US, LLC


2007 policy therefore did not prejudice Butler.      Hence the district court did not abuse its

discretion by refusing to award Butler damages.

       The district court’s judgment is affirmed.




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