                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT



                          No. 01-30370
                        Summary Calendar



                    HARTFORD LIFE & ACCIDENT
                          INSURANCE CO.

                                                          Plaintiff,


                             versus


                        BETTY K. WILMORE

                                               Defendant-Appellant
                                                  -Cross-Appellee,


                             versus


                       ANGELINE BOATRIGHT

                                               Defendant-Appellee
                                                -Cross-Appellant.



          Appeals from the United States District Court
              For the Western District of Louisiana
                         (No. 99-CV-2033)

                         January 4, 2002

Before DeMOSS, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*



  *
    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this opinion should not be published and is not precedent except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.
     Plaintiff Hartford Life & Accident Insurance Co. brought

this interpleader action to resolve competing claims to the

proceeds of two insurance polices it issued to Bartley P.

Wilmore.   The competing parties, Wilmore’s mother, Betty K.

Wilmore, and his ex-wife, Angeline Boatwright, each moved for

summary judgment on their respective claims.    The district court

concluded that Wilmore’s mother was entitled to the proceeds of

the accidental death and disability policy, but that Wilmore had

failed to effect a change in beneficiaries to the life insurance

policy and that Boatwright was therefore entitled those proceeds.

We affirm the district court’s judgment for Wilmore’s mother, but

we vacate its judgment for Boatwright and render for Betty

Wilmore instead.

                            BACKGROUND

     Wilmore worked for Albertson’s from 1990 until his death in

1999.   Through Albertson’s, Wilmore obtained accidental death and

disability and life insurance policies issued by Hartford.

Albertson’s acted as the policyholder and administrator to the

two plans.   The record indicates that up until 1995 Boatwright

was listed as the primary beneficiary on both polices and

Wilmore’s mother, the residual beneficiary.    Wilmore and

Boatwright divorced in 1996.   Shortly before, in a hand-written

letter dated May 25, 1995, sent via facsimile, Wilmore requested

that Albertson’s remove Boatwright as beneficiary to both



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policies effective immediately.    Albertson’s placed the facsimile

in Wilmore’s personnel file where it remained until shortly after

his death.

     The insurance proceeds, $45,000 under life plan and $5,000

under the death and disability plan, were deposited into the

registry of the court, and Hartford was dismissed from the

action.    Both parties made timely appeals from the judgment of

the district court.

                              DISCUSSION

     Claims disposed of on summary judgment are reviewed de novo.

See Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380

(5th Cir. 1998).    “Summary judgment is appropriate, when, viewing

the evidence in the light most favorable to the nonmoving party,

the record reflects that no genuine issue of any material fact

exists, and the moving party is entitled to judgment as a matter

of law.”    Urbano v. Continental Airlines, Inc., 138 F.3d 204, 205

(5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317,

322-24 (1986)).

     This matter is governed by the Employee Retirement Income

Security Act (“ERISA”).    The question who succeeds to benefits

from an ERISA-governed plan turns, first, on the plan’s plain

meaning, and then, second, on ERISA itself and on federal court

interpretations thereunder.    See Brandon v. Travelers Ins. Co.,

18 F.3d 1321, 1325 (5th Cir. 1994).     With respect to Wilmore’s


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life insurance plan, the plan provides that the beneficiary may

be changed at any time by “(1) making such change in writing on a

form acceptable to The Hartford; and (2) filing the form with the

Policyholder.”   The district court suggested that the form used

to change beneficiaries must be one pre-approved by Hartford, and

that Wilmore’s facsimile was not such a form.        This

interpretation of the life plan is not supported by its plain

language, however.    The plan says that the change in

beneficiaries must be made on an “acceptable” form.         An

acceptable form is one that is “capable or worthy of being

accepted.”   See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 11 (1981).

An “approved” form, on the other hand, is one that has been

proven as being correct.     See id. at 106.    The plan’s use of

“acceptable” suggests that some unapproved forms might suffice

for changing beneficiaries, a construction more in accord with

the plain meaning of the plan.

     We note that Albertson’s plan administrator testified that

Hartford would not have considered Wilmore’s facsimile an

acceptable form.   But there is no evidence to support her belief

as to what the insurance company would or would not have done in

this particular situation, and as the administrator herself

testified, whether the form is acceptable is a question reserved

for Hartford, not Albertson’s.     We also note that the

administrator testified that it was her department’s practice to


                                  -4-
send the insured a change-of-beneficiary card after receiving

notice of the insured’s intent to affect a change.    But the

record in this case does not indicate whether a card was ever

sent or whether Wilmore ever received one or even knew of the

department’s practice.

      There being insufficient evidence to conclude whether

Wilmore was in compliance with the life plan’s plain meaning, and

there being no statutory provisions under ERISA governing change-

of-beneficiary procedures,1 we turn to federal common law and the

doctrine of substantial compliance.    Substantial compliance is

aimed at giving “effect to an insured’s intent to comply when

that intent is evident.”   See Phoenix Mutual, 30 F.3d at 566.

The doctrine requires that “an insured intend to change his

beneficiary and that he take positive action to effectuate that

intent. . . .”   Id. at 565.   With respect to the life plan, the

evidence shows that Wilmore intended to change beneficiaries.

His facsimile is addressed to “Albertson’s Employee Benefits

Department,” has “Bartley Wilmore” as the sender, and lists his

Social Security number.    See Letter from Bartley P. Wilmore to

Albertson’s Employee Benefits Department (May 25, 1995)).     It

requests that his wife and two step children be removed from his


  1
     See Emard v. Hughes Aircraft Co., 153 F.3d 949, 957 (9th
Cir. 1998); Equitable Life Assurance Soc. v. Crysler, 66 F.3d
944, 948 (8th Cir. 1995); Phoenix Mutual Life Ins. Co. v. Adams,
30 F.3d 554, 562 (4th Cir. 1994); Krishna v. Colgate Palmolive
Co., 7 F.3d 11, 14 (2d Cir. 1993).

                                 -5-
“insurance coverage plan as well as any life insurance benefits

effective immediately.”   Id.   Although the facsimile does

evidence intent to drop Boatwright and her children, we concede

that it does not evidence any intent to change the beneficiary to

Wilmore’s mother.   But this deficiency is remedied by Wilmore’s

mother being the residual beneficiary, “The person designated in

a life-insurance policy to receive the proceeds if the primary

beneficiary is unable to do so,” BLACK’S LAW DICTIONARY 149 (7th ed.

1999)(defining “contingent beneficiary”).    We therefore conclude

that the above shows Wilmore’s intent to replace Boatright and

her children with Wilmore’s mother as beneficiary to the life

plan.   We also conclude that Wilmore’s facsimile to Albertson’s

constituted the positive action necessary to effectuate his

intent.

     We now consider the district court’s determination that

Wilmore effectuated a beneficiary change to his accidental death

and disability plan.   That plan permits a change of beneficiary

by giving a “written request to the policy holder” and provides

that the change takes effect on the date it is executed,

“regardless of whether [the insured is] living when the policy

holder receives it.”   The district court concluded that the

facsimile, which purported to remove Boatwright from Wilmore’s

“insurance coverage plan as well as any life insurance benefits,”

was effective as to the death and disability plan.    In light of



                                 -6-
that plan’s provision for changing beneficiaries, which is less

particular than the similar provision contained in the life plan,

we agree.   As with the life plan, Wilmore’s mother was listed as

a contingent beneficiary, and this fact, coupled with his evident

intent to remove Boatwright, suffices to effect a change in

beneficiaries.   If Wilmore’s purported change was not consistent

with the letter of the death and disability plan, then it was

certainly in substantial compliance with it.   We therefore affirm

the district court’s determination that Wilmore’s mother is

entitled to the proceeds of the death and disability plan.

                            CONCLUSION

     For the foregoing reasons, we VACATE the district court’s

entry of judgment for Boatwright and RENDER judgment for Betty

Wilmore instead.   As to the district court’s entry of judgment

for Wilmore, we AFFIRM.




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APPENDIX




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