             Case: 14-11678    Date Filed: 11/25/2014   Page: 1 of 18


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-11678
                          ________________________

                       D.C. Docket No. 9:12-cv-80746-DLB


BOARD OF TRUSTEES OF THE NATIONAL
ELEVATOR INDUSTRY HEALTH BENEFIT PLAN,

                                                                 Plaintiff-Appellee,

                                      versus

ROBERT MONTANILE,

                                                             Defendant-Appellant.
                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                              (November 25, 2014)

Before HULL, MARCUS and DUBINA, Circuit Judges.

HULL, Circuit Judge:

      Defendant-appellant Robert Montanile appeals the district court’s grant of

summary judgment in the amount of $121,044.02 in favor of the plaintiff-appellee
               Case: 14-11678        Date Filed: 11/25/2014      Page: 2 of 18


Board of Trustees of the National Elevator Industry Health Benefit Plan (the

“Board”) in its lawsuit against Montanile. After an automobile accident,

Montanile received a settlement from a third-party tortfeasor for injuries he

suffered in the accident. After that settlement, the plaintiff Board sued Montanile

for reimbursement of the medical expenses already paid on defendant Montanile’s

behalf. After review, we affirm.

                                    I. BACKGROUND

        The facts of this case are largely undisputed. The Board is the named

fiduciary and administrator of the National Elevator Industry Health Benefit Plan

(the “Plan”). The Plan is an employee welfare benefit plan as defined by the

Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001

et seq. At all relevant times, Robert Montanile was a covered employee under the

Plan.

A.      The Plan Documents

        The parties filed three relevant documents relating to the Plan. The first

document, the Restated Agreement and Declaration of Trust (the “Trust

Agreement”), establishes the Plan for the benefit of members of the International

Union of Elevator Constructors (the “Union”).1 The Trust Agreement also


        1
         The record neither specifies Montanile’s employer, nor expressly states that Montanile
was a member of the Union. Nonetheless, the parties agree that Montanile was covered by the
Plan at all relevant times.
                                                2
              Case: 14-11678    Date Filed: 11/25/2014    Page: 3 of 18


provides for the management of the Plan, governs Plan contributions, and creates

general rules for claim management.

      The Trust Agreement, however, does not provide the details regarding the

health coverage and the benefits provided by the Plan and does not specify the

procedures by which participants may seek benefits. Rather, the Trust Agreement

gives the Board “full discretionary authority to adopt a Plan of Welfare Benefits,

which sets forth eligibility requirements, type, amount, and duration of benefits

that are to be provided to eligible employees . . . .” The Trust Agreement also

provides that the “detailed basis on which payment of benefits is to be made

pursuant to this Trust Agreement shall be set forth in the Plan of Welfare

Benefits.” “Such Plan of Welfare Benefits shall be subject to amendment by the

Trustees from time to time as they may, in their discretion, determine . . . .” The

Trust Agreement thus expressly contemplates that the participants’ health coverage

and benefits shall be set forth in a separate plan document from the Trust

Agreement.

      The second document, the National Elevator Bargaining Association

Agreement with International Union of Elevator Constructors (the “Bargaining

Agreement”), was effective from July 9, 2007, through July 8, 2012. The

Bargaining Agreement specified that there would be a “Health Benefit Plan” and

that any changes to the Plan would be part of the bargaining agreement, as follows:


                                          3
              Case: 14-11678     Date Filed: 11/25/2014    Page: 4 of 18


             The Health Benefit Plan covering life insurance, sickness
             and accident benefits, and hospitalization insurance, or
             any changes thereto that are in accordance with the
             National Elevator Industry Health Benefit Plan and
             Declaration of Trust, shall be a part of this Agreement
             and adopted by all parties signatory thereto.

The Bargaining Agreement also provided that “the decision(s) to increase or

decrease the benefits provided by the Health Benefit Plan are matters committed to

the discretion of the Trustees . . . .” The Bargaining Agreement did not specify any

rights or obligations regarding the benefits that would be set forth in the Plan.

      The third document, the 2005 version of the National Elevator Industry

Health Benefit Plan Summary Plan Description (the “NEI Summary Plan

Description”), was effective through, at least, May 2011. The 2005 version of the

NEI Summary Plan Description was “written to reflect the changes in the Health

Benefit Plan since the last version was printed.” The document “provide[d] the

required information about [Plan beneficiaries’] rights and protection under the law

in order to comply with the Employee Retirement Income Security Act of 1974.”

      The NEI Summary Plan Description was 87 pages long and contained, inter

alia, detailed information regarding eligibility for health benefits, the extent of

specific types of benefits, and claim-filing procedures. The NEI Summary Plan

Description also included provisions regarding the benefits provided by the Plan

when the losses were caused by a third party and the Plan’s rights to recovery and

reimbursement. The NEI Summary Plan Description set forth the Plan’s rights to
                                           4
             Case: 14-11678     Date Filed: 11/25/2014    Page: 5 of 18


subrogation and first-recovery reimbursement out of any amounts recovered by the

Plan participants from another party as follows:

             The Plan’s Right of Recovery
             The Plan has the right to recover benefits advanced by
             the Plan to a covered person for expenses or losses
             caused by another party. . . .

             Amounts that have been recovered by a covered person
             from another party are assets of the Plan by virtue of the
             Plan’s subrogation interest and are not distributable to
             any person or entity without the Plan’s written release of
             its subrogation interest. . . .

             The Plan’s right of recovery also applies if benefits are
             advanced by the Plan to an individual on behalf of an
             injured covered person or to the covered person’s
             assignee.

             The Plan’s Right of Reimbursement
             The Plan has a right to first reimbursement out of any
             recovery. Acceptance of benefits from the Plan for an
             injury or illness by a covered person, without any further
             action by the Plan and/or the covered person, constitutes
             an agreement that any amounts recovered from another
             party by award, judgment, settlement or otherwise, and
             regardless of how the proceeds are characterized, will
             promptly be applied first to reimburse the Plan in full for
             benefits advanced by the Plan due to the injury or illness
             and without reduction for attorneys’ fees, costs, expenses
             or damages claimed by the covered person, and
             regardless of whether the covered person is made whole
             or recovers only part of his/her damages.

(Emphasis added). While the NEI Summary Plan Description had this

reimbursement provision, the Trust Agreement and the Bargaining Agreement did

not have a similar provision.
                                          5
               Case: 14-11678    Date Filed: 11/25/2014   Page: 6 of 18


B.    Montanile’s Injury and the Reimbursement Dispute

      On December 1, 2008, Montanile was injured in a car accident involving a

drunk driver. Montanile suffered injuries to his neck and lower back, requiring

lumbar spinal fusion surgery and other medical treatment to reduce his pain and

loss of function. The Plan paid Montanile’s initial medical expenses of

$121,044.02.

      Montanile retained counsel and initiated a civil lawsuit against the driver of

the other car for negligence. Montanile eventually obtained a $500,000 settlement

from the other driver. Out of the settlement funds, Montanile paid his attorneys a

$200,000 contingency fee and $63,788.48 to reimburse out-of-pocket expenses.

      After defendant Montanile accepted the settlement, the plaintiff Board, as

fiduciary for the Plan, asserted that the Plan had the right to be reimbursed out of

the settlement proceeds for the medical expenses paid on Montanile’s behalf. The

Board and Montanile, through counsel, attempted to negotiate a resolution from

June 2011 through January 2012. After settlement discussions reached an impasse,

the Board filed a single-count ERISA lawsuit to enforce the Plan’s reimbursement

provision.

C.    District Court Proceedings

      In its complaint, the plaintiff Board alleged that “the National Elevator

Industry Health Benefit Plan Summary Plan Description” met ERISA’s


                                          6
              Case: 14-11678     Date Filed: 11/25/2014   Page: 7 of 18


requirement of a written plan and summary plan description. The Board claimed

that, pursuant to the NEI Summary Plan Description, Montanile was required to

fully reimburse the Plan from the settlement payment he received.

      The plaintiff Board further alleged that “all or part of the settlement

proceeds are within the actual or constructive possession of” Montanile and

claimed that the Plan was “entitled to equitable restitution in the form of a

constructive trust or equitable lien with respect to the disputed funds held in

Defendant [Montanile’s] actual or constructive possession.” The Board therefore

requested that defendant Montanile “be ordered to turn over to the Plan any

settlement funds in his actual or constructive possession (up to the amount of the

benefits advanced by the Plan on his behalf) in order to enforce the written terms

of the Plan of Welfare Benefits and ERISA.”

      In his answer, defendant Montanile admitted that the Plan “described in

paragraph 11 of the Complaint” is one of the governing documents for the ERISA

group health benefits Plan at issue in this case.” However, Montanile later

reversed course and moved for summary judgment, arguing, inter alia, that the

Bargaining Agreement and the Trust Agreement were the only “governing plan

documents.” Montanile contended that any subrogation or reimbursement rights

the Plan asserted must accordingly be found in one of those two documents.




                                          7
              Case: 14-11678     Date Filed: 11/25/2014   Page: 8 of 18


      The Board opposed Montanile’s summary-judgment motion. The Board

contended that the NEI Summary Plan Description was a governing Plan document

that could establish subrogation and reimbursement rights because the Bargaining

Agreement and the Trust Agreement “reference a separate plan document that sets

forth eligibility requirements, type, amount, and duration of benefits that are to be

provided to covered persons.” According to the Board, the NEI Summary Plan

Description was that document; no other document met the qualifications of a

written plan of welfare benefits, and no other document defined a covered person’s

right to benefits under the Plan. The Board also filed its own cross-motion for

summary judgment.

      Montanile opposed the Board’s cross-motion for summary judgment,

arguing that the reimbursement sought by the Board was not “appropriate equitable

relief” under 29 U.S.C. § 1132(a)(3)(B) because the funds on which the Board

wished to assert an equitable lien had been dissipated through payments Montanile

had made since receiving the settlement.

      The district court found that the NEI Summary Plan Description was an

enforceable, governing plan document required by ERISA. Specifically, the

district court stated that “[t]here can be no doubt that the NEI Summary Plan

Description functioned as both the governing Plan document and the summary plan

description mandated by ERISA.” The district court also then found that


                                           8
              Case: 14-11678       Date Filed: 11/25/2014    Page: 9 of 18


reimbursement was appropriate equitable relief under § 1132(a)(3)(B) because

“[t]he settlement proceeds represent an identifiable fund to which the Plan’s lien

attached and such proceeds belong ‘in good conscience’ to the Plan to the extent of

the medical expenses it paid on Defendant’s behalf.” Accordingly, the district

court denied Montanile’s motion for summary judgment and granted summary

judgment in favor of the Board in the amount of $121,044.02, which was what the

Board had paid as Montanile’s medical expenses.

       Montanile timely appealed.

                      II. RELEVANT ERISA PROVISIONS

       ERISA authorizes plan participants and beneficiaries to bring civil actions

“to recover benefits due” and “to enforce . . . rights under the terms of the plan.”

29 U.S.C. § 1132(a)(1)(B). The statute also authorizes participants, beneficiaries,

and fiduciaries of a plan to seek “appropriate equitable relief . . . to enforce . . . the

terms of the plan.” Id. § 1132(a)(3)(B).

       The statute does not specify where the “terms of the plan” must be found,

but it does require every “employee benefit plan” to be “established and

maintained pursuant to a written instrument.” Id. § 1102(a)(1). The written

instrument “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.” Id.


                                             9
             Case: 14-11678     Date Filed: 11/25/2014   Page: 10 of 18


      In the same section as the “written instrument” provision, ERISA requires

that each plan must

             (1) provide a procedure for establishing and carrying out
             a funding policy and method consistent with the
             objectives of the plan . . . ,
             (2) describe any procedure under the plan for the
             allocation of responsibilities for the operation and
             administration of the plan . . . ,
             (3) provide a procedure for amending such plan, and for
             identifying the persons who have authority to amend the
             plan, and
             (4) specify the basis on which payments are made to and
             from the plan.

Id. § 1102(b). The text of the statute, however, does not state that the four

requirements of each plan must be in the same “written instrument” that establishes

and maintains the Plan.

      Nonetheless, ERISA mandates that a “summary plan description of any

employee benefit plan shall be furnished to participants and beneficiaries” of the

plan. Id. § 1022(a). “The summary plan description . . . shall be written in a

manner calculated to be understood by the average plan participant, and shall be

sufficiently accurate and comprehensive to reasonably apprise such participants

and beneficiaries of their rights and obligations under the plan.” Id.

                                 III. DISCUSSION

      On appeal, Montanile argues that the district court erred in finding that the

Board could impose an equitable lien on the settlement funds because the funds


                                          10
             Case: 14-11678      Date Filed: 11/25/2014    Page: 11 of 18


had been spent or dissipated. As both parties recognize in their supplemental

briefs, Montanile’s argument is now foreclosed by our recent holding in AirTran

Airways, Inc. v. Elem, 767 F.3d 1192 (11th Cir. 2014). This Court held in AirTran

that, pursuant to § 1132(a)(3)(B), an equitable lien immediately attached to

settlement funds where a plan provision’s unambiguous terms gave the plan a first-

priority claim to all payments made by a third party. Id. at 1198. The AirTran

court held that the settlement funds were “specifically identifiable,” and a plan

participant’s dissipation of the funds thus “could not destroy the lien that attached

before” the dissipation. Id. (emphasis in original). This holding binds our decision

here. Accordingly, the Board can impose an equitable lien on Montanile’s

settlement, even if dissipated, if his health benefit Plan gave the Plan a first-priority

claim to the settlement payments Montanile received.

      Here, the NEI Summary Plan Description gave the Plan a first-priority claim

to settlement proceeds Montanile received from a third party. Therefore, as an

alternative argument, Montanile contends that the NEI Summary Plan Description

is not a governing Plan document and thus its terms are not enforceable as part of

the Plan. Because the district court concluded that the NEI Summary Plan

Description was an enforceable, governing Plan document at the summary-

judgment stage, we must review de novo, rather than for clear error. See Wooden

v. Bd. of Regents of Univ. Sys. of Georgia, 247 F.3d 1262, 1271 n.9 (11th Cir.


                                           11
               Case: 14-11678       Date Filed: 11/25/2014      Page: 12 of 18


2001) (“[A] district court does not make factual findings in deciding a summary

judgment motion, so no question of clear error review . . . arises here.”).

A.     Dual Function of a Summary Plan Description

       First, Montanile argues that a single document, such as the NEI Summary

Plan Description, cannot be both (1) a written instrument that sets forth the Plan’s

terms, as required by § 1102(a)(1), and (2) a summary plan description, as required

by § 1022.2

       We have previously indicated that a single document can serve both

functions. See Alday v. Container Corp. of Am., 906 F.2d 660, 666 (11th Cir.

1990) (stating that a summary plan description “clearly functioned as the plan

document required by ERISA” and “unambiguously set out the rights of the

parties”). Indeed, in his response to the Board’s cross-motion for summary

judgment in the district court, “Montanile acknowledge[d] that ERISA plan

fiduciaries may draft a document that operates both as the governing plan

document and the SPD mandated by ERISA . . . .” 3 However, Montanile on appeal

now contends that the Supreme Court’s decision in CIGNA Corp. v. Amara, 563

U.S. ___, 131 S. Ct. 1866, 1870 (2011), requires us to hold otherwise.


       2
        Although the plaintiff Board claims that defendant Montanile waived this argument, we
need not resolve that issue as it lacks merit in any event.
       3
        In the district court, Montanile conceded that a summary plan description could serve as
a governing document, but contended that the NEI Summary Plan Description did not so serve.
We address this argument infra, Part III.B.
                                               12
             Case: 14-11678     Date Filed: 11/25/2014    Page: 13 of 18


      In Amara, the original provisions contained in CIGNA’s governing pension

plan document provided that employees would receive a pension plan in the form

of a defined-benefit annuity. Id. at ___, 131 S. Ct. at 1871. In November 1997,

CIGNA announced in a newsletter that it was converting the pension plan into a

plan with “cash balance” individual retirement accounts. Id. at ___, 131 S. Ct. at

1871-72. In 1998, CIGNA effected the change to cash-balance accounts in new

governing plan documents. Id. However, the district court found that CIGNA

intentionally misled its employees in the November 1997 written communication

regarding the changes. Id. at ___, 131 S. Ct. at 1872. The district court then

reformed the plan’s provisions to be consistent with the November 1997 written

communication regarding the change. Id. at ___, 131 S. Ct. at 1875-76.

Importantly, the district court’s reformation did not merely reinstate the defined-

benefit plan. Instead, the district court created a plan that included terms that were

not found in either the original plan or the new plan. See id. at ___, 131 S. Ct. at

1876-77.

      After granting certiorari, the Supreme Court held that the district court

lacked the power, pursuant to § 1132(a)(1), to change the terms of the plan where

the change imposed by the court “seems less like the simple enforcement of a

contract as written and more like an equitable remedy.” Id. at ___, 131 S. Ct. at

1876-77. The Supreme Court rejected the proposition that the 1997 written


                                          13
              Case: 14-11678      Date Filed: 11/25/2014      Page: 14 of 18


communication, even if construed as a statutorily-required plan summary,

“necessarily may be enforced . . . as the terms of the plan itself.” 4 Id. at ___, 131

S. Ct. at 1877 (emphasis added). The Supreme Court stated that the syntax of §

1022(a), “requiring that participants and beneficiaries be advised of their rights and

obligations ‘under the plan,’ suggests that the information about the plan provided

[in a summary plan description] is not itself part of the plan.” Id. (emphasis in

original).

       Additionally, the Supreme Court stated that it had “no reason to believe that

the statute intends to mix the responsibilities [of plan sponsor and plan

administrator] by giving the administrator the power to set plan terms indirectly by

including them in the summary plan descriptions.” Id. Finally, the Supreme Court

noted that “[t]o make the language of a plan summary legally binding could well

lead plan administrators to sacrifice simplicity and comprehensibility in order to

describe plan terms in the language of lawyers.” Id. at ___, 131 S. Ct. at 1877-78.

       Although “dicta from the Supreme Court is not something to be lightly cast

aside,” Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1997),

the facts of this case are materially distinguishable from the facts of Amara. To

       4
        Although the misleading communication at issue in Amara was a summary of a material
plan change, both summaries of material changes made to ERISA plans and the standard
summary plan descriptions are governed by 29 U.S.C. § 1022(a). Accordingly, the Supreme
Court indicated that its analysis applied with equal force to summary plan descriptions. See
Amara, 563 U.S. at ___, 131 S. Ct. at 1877 (“[W]e cannot agree that the terms of statutorily
required plan summaries (or summaries of plan modifications) necessarily may be enforced
(under § 502(a)(1)(B)) as the terms of the plan itself.”).
                                             14
             Case: 14-11678     Date Filed: 11/25/2014    Page: 15 of 18


begin with, the Supreme Court’s holding in Amara—that the district court lacked

the power under § 1132(a)(1) to enforce an equitable remedy—does not impact our

analysis. The provision under which the Board seeks relief here, § 1132(a)(3),

specifically grants the Board the right to seek equitable relief. 29 U.S.C.

§ 1132(a)(3)(B).

      Furthermore, Amara only precludes courts from enforcing summary plan

descriptions, pursuant to § 1132(a)(1), where the terms of that summary conflict

with the terms specified in other, governing plan documents. However, the Amara

Court had no occasion to consider whether the terms of a summary plan

description are enforceable where it is the only document that “specif[ies] the basis

on which payments are made to and from the plan,” as required by § 1102(b). Cf.

Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey, 663 F.3d 1124, 1131

(10th Cir. 2011) (holding that Amara did not prevent a court from giving

deferential review to a Plan’s decision regarding a term found only in a summary

plan description because “the SPD does not conflict with the Plan or present terms

unsupported by the Plan; rather, it is the Plan” (emphasis in original)). Indeed, the

Amara Court’s rejection of the proposition that summary plan descriptions

“necessarily may be enforced . . . as the terms of the plan itself” leaves open the

possibility that terms in those summaries may, at times, be enforced, even though




                                          15
              Case: 14-11678      Date Filed: 11/25/2014     Page: 16 of 18


they are not always enforceable. See Amara, 563 U.S. at ___, 131 S. Ct. at 1877

(emphasis added).

       Here, the NEI Summary Plan Document does not conflict with any pre-

existing plan documents that set out the rights of the parties—because no other

written instrument specifies the benefits and obligations of Plan participants. The

terms specified in that summary plan description are enforceable, pursuant to

§ 1132(a)(3) because (1) no other document lays out the rights and obligations of

plan participants and (2) the Trust Agreement contemplated the rights and

obligations would be set forth in a separate document.

B.     The Governing Plan Documents

       In the alternative, Montanile argues that, even if a summary plan description

theoretically could serve both roles, the district court erred by finding that terms

found only in the NEI Summary Plan Description were enforceable because the

Trust Agreement constituted the sole governing Plan document.5

       Enforceable plan terms may be found in more than one document. See

Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 83, 115 S. Ct. 1223, 1230

(1995) (“In the words of the key congressional report, ‘[a] written plan is to be

required in order that every employee may, on examining the plan documents,

determine exactly what his rights and obligations are under the plan.’” (quoting

       5
      Montanile no longer contends that the Bargaining Agreement is a governing Plan
document.
                                            16
             Case: 14-11678     Date Filed: 11/25/2014   Page: 17 of 18


H.R. Conf. Rep. No. 93-1280, at 297, as reprinted in 1974 U.S.C.C.A.N. 5038,

5077-78) (emphasis added)). Montanile does not dispute this point.

      Here, the terms of the Trust Agreement demonstrate that the enforceable

terms of the Plan are to be found in more than just that one document. In

particular, the Trust Agreement does not “specify the basis on which payments are

made to and from the plan,” as required by § 1102(b). Rather, it states that the

Trustees will establish the “detailed basis on which payment of benefits is to be

made” in “the Plan of Welfare Benefits.” Although the NEI Summary Plan

Description does not carry the title contemplated by the Trust Agreement, it serves

the precise function as that proposed for the “Plan of Welfare Benefits.” Indeed,

Montanile initially admitted that the NEI Summary Plan Description was “one of

the governing documents for the ERISA group health benefits Plan at issue in this

case” before reversing course in his motion for summary judgment.

      Furthermore, if the enforceable terms of the Plan were limited to those found

in the Trust Agreement, there would be no governing document that specifies Plan

participants’ rights or obligations regarding benefits. Plan participants would thus

be barred from enforcing their rights under the straight-forward provisions of

§ 1132(a)(1). And, if we held that the Board could not use the equitable provision

of § 1132(a)(3) to enforce the Plan’s right to reimbursement, it would not be clear

that Plan participants could enforce in equity any participant rights found solely in


                                          17
             Case: 14-11678     Date Filed: 11/25/2014    Page: 18 of 18


the NEI Summary Plan Description. We refuse to embrace such an outcome. See

Admin. Comm. of Wal-Mart Stores, Inc. Associates’ Health & Welfare Plan v.

Gamboa, 479 F.3d 538, 544 (8th Cir. 2007) (“ERISA requires a written

arrangement, and no other document exists by which group health benefits are

provided. . . . It would be nonsensical to conclude that the plain language of the

Plan requires an interpretation that renders no plan at all under the terms of

ERISA.”).

      We hold that the NEI Summary Plan Description constitutes a written

instrument that sets out enforceable “terms of the plan.” See Alday, 906 F.2d at

666. Accordingly, pursuant to § 1132(a)(3), the Board could enforce the term

found in the NEI Summary Plan Description that gave it a subrogation interest in

sums recovered from third parties.

                                IV. CONCLUSION

      For all of the foregoing reasons, we affirm the district court’s grant of

summary judgment in favor of the Board and denial of Montanile’s summary-

judgment motion.

      AFFIRMED.




                                          18
