
USCA1 Opinion

	




          July 19, 1995         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1754                     FLORENCE NIGHTINGALE NURSING SERVICES, INC.,                                Plaintiff, Appellant,                                          v.                         PAUL REVERE LIFE INSURANCE COMPANY,                                 Defendant, Appellee.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                                                                      ____________________                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             William J. McLeod for appellant.             _________________             David  A. Talman, with whom Phillips, Silver, Talman & Aframe was             ________________            _________________________________        on brief for appellee.                                                                                      ____________________                                                                                      ____________________                    Per  Curiam.   Plaintiff  Florence  Nightingale Nursing                    Per  Curiam.                    ___________          Services,  Inc. ("Nightingale")  appeals  from  a district  court          judgment summarily  disallowing its  claim for benefits  under an          Employee Retirement  Income  Security Act  ("ERISA")  health  and          welfare  plan  ("Plan")  issued  by defendant  Paul  Revere  Life          Insurance  Co. ("Revere").   As  summary judgment was  proper, we          affirm.                                           I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    On May  15, 1989, James Thoumes,  M.D., notified Revere          that  its insured,  Herbert Striesfield,  would require  "Private          Duty Licensed nursing care  for . . . Acquired  Immune Deficiency          Syndrome."  Doctor Thoumes explicitly informed Revere that it was          "medically necessary"  that Striesfield receive "a  minimum of 12          hours daily [nursing] care at his home," in administering medica-          tions and  safeguarding him from  injury which might  result from          his unsteady gait and poor balance.                     Nightingale  provided  the prescribed  nursing services          after obtaining  a valid assignment of  Striesfield's Revere Plan          benefits and after requesting Revere to verify the substance of a          telephone conversation in which, according to Nightingale, Revere          had                     confirmed and authorized the  following bene-                    fits, coverage and payment to [Nightingale] .                    . . for Herbert Striesfield's nursing care:                         (1)  Unlimited skilled nursing care.                         (2)  Payment to  [Nightingale] for nurs-                                          2                              ing care provided  upon receipt  of                              our  invoice will  be paid  at 100%                              for fees incurred.                    [Nightingale]  understand[s]  that [its]  in-                    voice must  be  attached to  a  physician[']s                    Letter  of  Medical  Necessity  ordering  the                    nursing care required and  nursing documenta-                    tion.          The record contains no response from Revere.                    Later,  Nightingale asked  Revere  to  confirm  another          telephone  conversation in  which,  according  to Nightingale,  a          responsible Revere  employee had "stated that  [Revere] would pay          for  C.N.A.s [i.e.,  certified nurses  aides]."   Nightingale re-          quested a response within  five days in the event there  were any          discrepancies between its letter and Revere's understanding as to          the substance of the putative telephone conversation.  The record          contains no response from Revere.                    Under the  heading "What We  Do Not Pay,"  the relevant          Plan language provided:                     16.  Any  service,  supply or  treatment con-                    nected with  custodial care.   We do  not pay                    for these services or supplies no  matter who                    provides, prescribes,  recommends or performs                    them.   Custodial care means service designed                    to  help family  members  meet  the needs  of                    daily living  whether  they are  disabled  or                    not.  These services include help in:                         a.   walking  or getting  in and  out of                              bed;                         b.   personal  care   such  as  bathing,                              dressing, eating  or preparing spe-                              cial diets; or                         c.   taking medications which the family                              member  would  normally be  able to                              take without help.                                          3                                          4          The summary  judgment record discloses that  the nursing services          provided by Nightingale included:   feeding Striesfield, monitor-          ing  his diet, making him comfortable,  moving his extremities to          improve muscle tone, massage,  and assisting him to and  from the          bathroom.                    Early on, Revere  disbursed $3,250.00 in  Plan benefits          to Nightingale.  Thereafter, however, in  reliance on the "custo-          dial  care" exclusion, supra at  p. 3, Revere  denied all further                                 _____          claims based on Nightingale's nursing services to Striesfield.                     Nightingale  eventually  brought  suit  in  the  United          States District Court  for the District of  Massachusetts.  After          the case  was referred  to a magistrate  judge, see  28 U.S.C.                                                             ___          636(b)(1)(B) (1995),  Revere moved for summary  judgment based on          the  "custodial care"  exclusion.   Nightingale filed  its cross-          motion for summary judgment and an opposition to Revere's summary          judgment motion,  asserting that  the "custodial  care" exclusion          was "vague and ambiguous"  and that Revere's oral representations          to Nightingale estopped Revere from denying coverage.                      The magistrate judge  recommended summary judgment  for          Revere on the grounds that coverage was plainly foreclosed by the          "custodial care"  exclusion and that Nightingale's estoppel claim          was  not cognizable  because the  alleged oral  representation or          informal writing upon which it relied could not be used to modify          the unambiguous  terms of  the Plan.    Nightingale filed  timely          objection  to the  magistrate-judge's report  and recommendation.          In due course, the  district court adopted the report  and recom-                                          5          mendation and Nightingale appealed.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Standard of Review          A.   Standard of Review               __________________                    Summary  judgment  rulings  are  reviewed  de  novo  to                                                               __  ____          determine whether the  pleadings, depositions, answers to  inter-          rogatories, and admissions on file, together with the affidavits,          if any,  show there is no  genuine issue as to  any material fact          and the  moving party is entitled to judgment as a matter of law.          Simon v. FDIC, 48 F.3d  53, 56 (1st Cir. 1995).   The evidence is          _____    ____          reviewed  in  the light  most  favorable to  the  party resisting          summary judgment.  Id.                             ___          B.   Plan Benefits          B.   Plan Benefits               _____________                    "[A] denial of benefits  challenged under [29 U.S.C.]            1132(a)(1)(B) is to be  reviewed under a de novo  standard unless                                                   __ ____          the benefit plan gives the administrator or fiduciary discretion-          ary authority to  determine eligibility for  benefits or to  con-          strue the terms of the  plan."  Firestone Tire and Rubber  Co. v.                                          ______________________________          Bruch, 489  U.S. 101, 115  (1989).  As  the Revere Plan  vests no          _____          such  discretion  in  the  Plan administrator  or  fiduciary,  we          conduct plenary review.                1.   "Private Duty Nursing"               1.   "Private Duty Nursing"                     ____________________                    The   Plan  provides  that  "reasonable  and  customary          charges" shall be covered for "[m]edically necessary private duty          nursing  ordered  by the  attending doctor  to  be provided  by a          licensed registered  or licensed practical nurse."   Although the                                          6          Plan  does not define the term, Nightingale argues on appeal that          a genuine issue of material fact exists as to whether the servic-          es provided Striesfield constituted "private duty nursing."                      This  argument  was  asserted  for the  first  time  in          Nightingale's  objection  to  the  magistrate-judge's  report and          recommendation.   It  was accompanied  by evidence  purporting to          show that the nursing services provided to Striesfield "included"          services which  a reasonable  factfinder could  consider "private          duty nursing."   As a general  rule, parties are not  entitled to          plenary review  of arguments  never raised before  the magistrate          judge  designated  to  hear  and report  on  dispositive  motions          pursuant to 28 U.S.C.   636(b)(1)(B).  Paterson-Leitch  Co., Inc.                                                 __________________________          v.  Massachusetts Mun. Wholesale Elec.  Co., 840 F.2d 985, 990-91              _______________________________________          (1st  Cir. 1988)  ("We  hold categorically  that an  unsuccessful          party  is not entitled as of right to de novo review by the judge                                                __ ____          of an argument never  seasonably raised before the magistrate.").          Although  the district  court did  not  explicitly rule  upon the          belated argument  relating to  the meaning  of the  term "private          duty nursing,"  we find no abuse  of discretion.  See  id. at 991                                                            ___  ___          (finding no abuse  of discretion in district  court's decision to          deny "another nibble at this particular apple" where party failed          to present its claim to magistrate judge in first instance).                    In all events, however,  the sole evidentiary underpin-          ning  for  the  unpreserved argument  advanced  on  appeal  is an          affidavit  reviewing the patient  file Nightingale  maintained on          Striesfield.  The affidavit does not specify the types of nursing                                          7          services  provided by  Nightingale,  nor  otherwise reveal  which          nursing services, if any,  might constitute covered "private duty          nursing."  The burden  of producing competent evidence sufficient          to  demonstrate a trialworthy issue  as to whether the particular          services rendered were covered  within the "private duty nursing"          provision  lay  with  Nightingale.   See  McCarthy  v.  Northwest                                               ___  ________      _________          Airlines, Inc.,  No. 94-2282,  slip op.  at 2 (1st  Cir. May  31,          ______________          1995) (party resisting summary  judgment on issue as to  which it          bears  ultimate  burden of  proof  "must  affirmatively point  to          specific  facts that  demonstrate the  existence of  an authentic          dispute."); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.                      _______    _______________          1990) (same).   As the  Nightingale affidavit failed  its mission          even  assuming timeliness, there is  no reason to suppose further          indulgence  would bear fruit.   See Paterson-Leitch,  840 F.2d at                                          ___ _______________          991.               2.  "Custodial Care" Exclusion               2.  "Custodial Care" Exclusion                    _________________________                    The Plan defines "custodial care" as:                    service designed to  help family members meet                    the needs  of daily  living whether  they are                    disabled or not[, including:]                          a.   walking or getting in  and out                              of bed;                         b.   personal  care   such  as  bathing,                              dressing, eating  or preparing spe-                              cial diets; or                         c.   taking medication  which the family                              member  would  normally be  able to                              take without help.          The evidence  presented before  the magistrate  judge established          that the  nursing services provided by  Nightingale came squarely                                          8          within the  "custodial care"  exclusion:  preparation  of special          diet,  feeding, performing  foot  massages,  "active and  passive          Range of Motion exercises," and assisting the patient to and from          the bathroom.  Thus, there was no error.1          C.   Equitable Estoppel          C.   Equitable Estoppel               __________________                    Nightingale contends that  Revere is equitably estopped          from  denying  benefits  under  the  "custodial  care"  exclusion          because these  nursing services  were provided to  Striesfield in          reliance on  Revere's contrary  oral representations.   But since          Nightingale has not demonstrated an ambiguity in the language  of                                              _________          the "custodial care" exclusion, the putative oral representations          it attributes to  Revere were  offered to modify,  not merely  to                                                             ___          interpret, the ERISA Plan language.  Thus, its equitable estoppel          claim cannot succeed.  Law v. Ernst & Young, 956 F.2d 364, 370-72                                 ___    _____________          (1st  Cir. 1992); Kane v. Aetna Life Ins., 893 F.2d 1283, 1285-86                            ____    _______________          (11th  Cir.), cert. denied, 498 U.S. 890 (1990).  See Schoonmaker                        _____ ______                        ___ ___________          v. Employee Sav. Plan of Amoco Corp., 987 F.2d 410, 412 (7th Cir.             _________________________________          1993)  (oral representations or  "other informal  statements" may          not be used to contradict terms of ERISA plan); Greany v. Western                                                          ______    _______          Farm  Bureau Life  Ins. Co., 973  F.2d 812,  822 (9th  Cir. 1992)          ___________________________          (same); Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 59 (4th                  _______    ________________________          Cir. 1992) (same), cert. denied, 113 S. Ct. 1051 (1993); Degan v.                             _____ ______                          _____                                    ____________________             1Nor would  the untimely  Nightingale affidavit have  altered the        "custodial  care" exclusion  ruling.   The  affidavit  does not  state        whether the listed services were among  those previously reimbursed by        Revere in the amount of $3,250,  nor does it reflect the dollar amount        claimed  for  the services  purportedly  qualifying  as "private  duty        nursing."                                           9          Ford  Motor Co., 869  F.2d 889, 895  (5th Cir. 1989)  (same); see          _______________                                               ___          also Hozier v. Midwest  Fasteners, Inc., 908 F.2d 1155,  1164 (3d          ____ ______    ________________________          Cir.  1990) (ERISA  plan  not subject  to  amendment by  informal          communication  between employer and  plan beneficiary);  Moore v.                                                                   _____          Metropolitan  Life Ins.  Co., 856  F.2d 488,  492 (2d  Cir. 1988)          ____________________________          (similar); Musto v. American  Gen. Corp., 861 F.2d 897,  910 (6th                     _____    ____________________          Cir. 1988) (clear terms  of written employee benefit plan  not to          be modified  or  superseded by  "oral  undertakings" on  part  of          employer), cert. denied, 490 U.S. 1020 (1989).                       _____ ______          D.   Evidentiary Claims           D.   Evidentiary Claims               __________________                    Nightingale appeals various evidentiary rulings  by the          magistrate judge.  We discuss only the challenged  rulings admit-          ting in evidence the  essential documentary exhibits proffered by          Revere, consisting of the Plan  document and the medical  records          Nightingale submitted to Revere.                    Nightingale contends  that the Plan document  itself is          inadmissible  hearsay.   See  Fed. R.  Evid.  802.   We need  not                                   ___          address Revere's response that the Plan document comes within the          "business  records exception"  to the hearsay  rule, see  Fed. R.                                                               ___          Evid. 803(6), since the Plan document itself is not hearsay.  See                                                                        ___          Kepner-Tregoe, Inc.  v. Leadership  Software, Inc., 12  F.3d 527,          ___________________     __________________________          540 (5th Cir.) ("Signed instruments such as wills, contracts, and          promissory notes are writings that have independent legal signif-          icance, and are nonhearsay.") (quoting Thomas A. Mauet, Fundamen-                                                                  _________          tals of Trial Techniques 180 (1988)), cert. denied, 115 S. Ct. 82          ________________________              _____ ______          (1994).   Rather, the Plan  constitutes a form  of verbal act  by                                          10          Revere and  Striesfield's employer.  Mueller v.  Abdnor, 972 F.2d                                               _______     ______          931, 937 (8th Cir. 1992); see also Kepner-Tregoe, 12 F.3d at 540;                                    ___ ____ _____________          2 John W. Strong et al., McCormick on Evidence   249, at 101 (4th                                   _____________________          ed. 1992).   The  Federal Rules  of Evidence explicitly  "exclude          from  hearsay the entire  category of  `verbal acts'  and `verbal          parts of an act,' in which the statement itself affects the legal          rights of the  parties or  is a circumstance  bearing on  conduct          affecting their rights."   Fed. R. Evid. 801(c)  advisory commit-          tee's note.                      At  no time  has  Nightingale suggested  that the  Plan          document admitted  in evidence  is not  the document  executed by                                             ___          Striesfield's  employer and  Revere.   Instead,  Nightingale  has          focused on  the lack  of personal  knowledge on  the part of  the          affiant  who attested that  a copy of  the Plan  document was at-          tached  to the affidavit.  Insofar as this represented an attempt          to assert that the  Plan document was not duly  authenticated, it          fails to assert  a basis for questioning the  affiant's statement          that the attached document is a copy of the Plan.                      Nightingale likewise objects to the Nightingale medical                                                        ___________          records  Revere introduced  to  support its  contention that  the          nursing  services  provided  by  Nightingale  were  custodial  in                                                              _________          nature.  As  a practical matter, of  course, this is an  argument          Nightingale cannot afford to win.   If Nightingale's own  nursing          services records were inadmissible,  there would appear to be  no          need  for Revere  to  justify its  disallowance of  Nightingale's          claims  under  the Plan.   In  all  events, however,  the nursing                                          11          records Nightingale submitted to Revere constituted admissions of                  ___________ _________          a party opponent, not  hearsay, see Fed. R. Evid.  801(d)(2); see                            ___           ___                           ___          also  United States v.  Paulino, 13 F.3d  20, 24  (1st Cir. 1994)          ____  _____________     _______          (finding  money order  receipt an  adoptive admission  tending to          prove appellant  financed apartment used  for drug  distribution,          where  receipt  was  found  in  appellant's  possession,  bearing          appellant's name and address, and labeled "May rent").  There was          no  abuse of discretion in denying Nightingale's motion to strike          the nursing records.                      Affirmed.                    Affirmed.                    ________                                          12
