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

                                                 FILED
                                                                            May 29, 2009

                                       No. 08-30828                    Charles R. Fulbruge III
                                                                               Clerk

LIFE INSURANCE COMPANY OF NORTH AMERICA

                                                   Plaintiff - Appellant
v.

DAVID A COMBE

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana


Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       This case presents a relatively minor dispute. Combe, the recipient of
disability benefits, asserts that he is entitled to receive his monthly benefit
payments at the beginning of each covered month. The insurer, Life Insurance
Company of North America (“LINA”), typically mails Combe’s monthly benefit
payments at the end of the covered month. After Combe executed a garnishment
order, LINA filed this declaratory judgment action to resolve the dispute. The
district court held that the monthly payments must be made in advance and



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-30828

granted Combe’s motion for summary judgment. The court also awarded Combe
his attorneys’ fees and costs. LINA now appeals. Concluding that LINA is not
required to pay the benefits in advance, we REVERSE and REMAND for entry
of judgment in favor of LINA.
                                        I.
      Combe was a law librarian for the Tulane University Law School. Because
of deteriorating health, Combe took a paid medical leave of absence in 2005.
Nearing the end of his medical leave, and knowing that his condition would
prevent him from returning to work, Combe applied for disability benefits under
the Tulane University Long Term Disability Plan (the “Plan”).          LINA, the
underwriter for the Plan, denied Combe’s claim. In October 2006, Combe filed
an action pursuant to the Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. § 1001 et seq., in the Eastern District of Louisiana for
wrongful denial of disability benefits. After discovery, the district court granted
Combe’s motion for summary judgment. The district court’s amended judgment
specifically required:
            (1)  Payment of monthly benefits in the amount of
            $6,389.21 per month from January 1, 2006 through the
            date of judgment, August 31, 2007, a total of
            $127,784.20, and further payments for as long as
            [Combe] qualifies as totally disabled under the Plan;

            (2)   Payment of contributions on Combe’s behalf to
            the Tulane University Pension Plan in the amount of
            $766.71 per month during the same period, a total of
            $15,334.20, and further payments for as long as he
            qualifies as totally disabled under the Plan;

            (3)   Payment of legal interest from the date each of
            the two installments became due until paid; and




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            (4)    Reasonable attorney’s fees, the amount to be
            determined at a later date, and costs incurred pursuing
            this litigation.

Combe v. Life Ins. Co. of N. Am., No. 06-CV-8909 (E.D. La. Aug. 31, 2007).
      In November, LINA sent Combe a check in partial satisfaction of the prior
benefits owed under the amended judgment. LINA also notified Combe that it
normally paid benefits monthly in arrears.         Combe’s counsel, however,
demanded that LINA send the benefits before the first day of each month.
      Despite this demand, LINA paid the November 2007, December 2007, and
January 2008 benefits in arrears. Combe received the November benefits on
December 11, the December benefits on December 29, and the January benefits
on January 29. Dissatisfied with receiving payment at the end of each month,
Combe filed an Ex Parte Motion for Payment by Garnishee on February 12,
2008. He sought his February benefit payment, which he asserted was due on
February 1, and interest for the purportedly late November, December, and
January payments. LINA did not contest the motion, and the district court
ordered the garnishment.
      LINA then filed this declaratory judgment action in the Eastern District
of Louisiana seeking declarations that: (1) it is not required to pay the monthly
benefits on the first day of the month; (2) Combe is not entitled to interest on
payments made after the first of the month; and (3) benefits are timely so long
as they are paid anytime in the month for which they accrue.
      On cross-motions for summary judgment, the district court found in favor
of Combe. Noting the phrase “from January 1, 2006” in the amended judgment
and the court’s earlier grant of Combe’s garnishment motion, the court concluded
that each monthly disability benefit payment is due on the first of the month.
The court also awarded attorneys’ fees and costs to Combe.




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                                       II.
      We review the district court’s grant of summary judgment de novo. Adams
v. Travelers Indem. Co., 465 F.3d 156, 163 (5th Cir. 2006). Summary judgment
is appropriate only “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c).
      The question presented in this case is whether LINA must pay the
monthly benefits in advance of their accrual. Neither the amended judgment
nor the Plan provide clarity on this issue. The Plan provides that “Disability
Benefits will be paid at regular intervals of not less frequently than once a
month.” And the amended judgment requires “[p]ayment of monthly benefits in
the amount of $6,389.21 per month from January 1, 2006 through the date of
judgment . . . and further payments for as long as [Combe] qualifies as totally
disabled under the Plan.”
      Combe relies on the phrase of the amended judgment “from January 1,
2006” and argues that, under this language, LINA must pay the benefits in all
subsequent months by the first of each month. This argument fails because the
reference to January 1, 2006 designates the time that benefits began to accrue,
which was the day after Combe stopped receiving a salary from Tulane. The
clause “[p]ayment . . . from January 1, 2006 through the date of judgment” does
not mandate that future benefits must be paid on the first day of each month.
The district court’s conclusion to the contrary is erroneous.
      Because the Plan affords LINA the discretion to interpret the terms of the
Plan, LINA’s interpretation is reviewed for abuse of discretion. Ellis v. Liberty
Life Assurance Co., 394 F.3d 262, 269 (5th Cir. 2004). Yet in this case, LINA is
not interpreting a specific provision of the Plan; no provision of the Plan deals
with this issue. Nonetheless, logistical matters, such as which day of the month

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benefit payments will be sent, should likewise be reviewed, at most, for abuse of
discretion.
       We hold that LINA’s determination to pay benefits in arrears is not an
abuse of discretion. Among other reasons, arrears payment is necessary in the
determination of whether benefits are actually owed for that month, that is,
whether the monthly payment has accrued in full. Moreover, the disability
benefits are designed to replace, in part, Combe’s salary from Tulane, and such
salaries are customarily paid in arrears. Thus, payments are timely so long as
they are paid by the end of the month for which they accrue. We therefore
REVERSE the district court’s grant of summary judgment.1 It follows that the
district court’s award of attorneys’ fees is REVERSED.
                                              III.
       For the above reasons, we REVERSE the district court’s grant of summary
judgment and award of attorneys fees, and REMAND for entry of judgment in
favor of LINA, consistent with this opinion.2
                              REVERSED and REMANDED for entry of judgment.




       1
          Combe further asserts that the issue in this declaratory judgment action is barred
under the doctrine of res judicata because LINA failed to raise this issue in the original ERISA
action. Combe’s argument assumes that the amended judgment explicitly required LINA to
pay future monthly benefits in advance. The amended judgment, as discussed above, did no
such thing. Moreover, LINA could not have anticipated that Combe would so vigorously object
to its customary payment schedule. Accordingly, we cannot fault LINA for failing to raise this
issue earlier.
       2
       Because the district court committed reversible error, this appeal is not frivolous.
Combe’s Rule 38 Motion for Damages and Double Costs is therefore DENIED.

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