                   Not for Publication in West's Federal Reporter

             United States Court of Appeals
                          For the First Circuit

No. 11-1253

                               JOAN KINGSBURY,

                           Plaintiff, Appellant,

                                        v.

           MARSH & McLENNAN COMPANIES, INC. RETIREMENT PLAN,
                a/k/a MARSH & McLENNAN COMPANIES, INC.,

                            Defendant, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. Leo T. Sorokin, U.S. Magistrate Judge]


                                     Before

                   Boudin and Lipez, Circuit Judges,

                       and Smith,* District Judge.


     Patrick M. Groulx, with whom Polis Legal, and Ralph C.
Copeland, were on brief for appellant.
     Edward Cerasia II, with whom Daniel B. Klein, and Seyfarth
Shaw LLP, were on brief for appellee.




                              February 16, 2012




     *
         Of the District of Rhode Island, sitting by designation.
              Per Curiam.     Joan Kingsbury appeals from the district

court's grant of summary judgment affirming the denial of a claim

for retirement benefits purportedly owed to Kingsbury's deceased

sister,   Lorna     Hutcheon,   under      the   Employee    Retirement     Income

Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B).                   The district

court    affirmed    the    denial    of   benefits   by     Marsh    &   McLennan

Companies, Inc. Retirement Plan, a/k/a Marsh & McLennan Companies,

Inc. (the "plan" or "Marsh & McLennan"), on the grounds that the

claim was barred by the statute of limitations and that the plan

administrator's decision was not arbitrary and capricious.

              On appeal, the court reviews de novo a district court's

grant of summary judgment.           D & H Therapy Assocs., LLC v. Boston

Mut. Life Ins. Co., 640 F.3d 27, 34 (1st Cir. 2011).                 With respect

to a plan administrator's decision, where an ERISA plan gives the

administrator discretion to determine benefit eligibility or to

construe the terms of the plan, and the plan administrator makes a

benefit determination under the plan, a court will only reverse the

administrator's decision when it is "arbitrary, capricious, or an

abuse    of   discretion."      Id.    (quoting     Cusson    v.   Liberty   Life

Assurance Co. of Boston, 592 F.3d 215, 224 (1st Cir. 2010)).1


     1
       This deferential standard of review is triggered by the
instant plan's language, which vests in the administrator
discretionary authority to determine benefit eligibility under the
plan and to interpret the terms of the plan. See Madera v. Marsh
USA, Inc., 426 F.3d 56, 63 (1st Cir. 2005). While Kingsbury states
that the court should employ de novo review of the plan
administrator's decision, she does not expand on this averment, and

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Under these circumstances, "summary judgment is simply a vehicle

for deciding the [benefits] issue and the non-moving party is not

entitled to the usual inferences in its favor."                Scibelli v.

Prudential Ins. Co. of Am., 666 F.3d 32, No. 11-1372, 2012 WL

75395, at *7 (1st Cir. Jan. 11, 2012) (quoting Gent v. CUNA Mut.

Ins. Soc'y, 611 F.3d 79, 82–83 (1st Cir. 2010)) (alteration in

original) (internal quotation marks omitted).

           In    October    2007,   Joan   Kingsbury's   husband,    Richard

Kingsbury, who was Hutcheon's brother-in-law and in favor of whom

Hutcheon had executed a power of attorney, contacted Marsh &

McLennan in writing regarding Hutcheon's eligibility for benefits

under the plan.       Hutcheon had fallen ill and the Kingsburys

believed Hutcheon was entitled to benefits under the plan because,

according to the Kingsburys, she had worked for Marsh & McLennan

for over twenty years, the plan was non-contributory (i.e., the

only requirement for plan membership was that the employee be a

salaried employee) with vesting after ten years of qualified

service,   and   eligible    participants    were   entitled   to   benefits

shortly after obtaining sixty-five years of age, which Hutcheon


so we take it that she has waived the conflict of interest argument
that she raised before the district court. Moreover, even if the
argument were not waived, she clearly has not met her burden of
demonstrating that the alleged conflict influenced the plan's
decision to deny her claim. See Cusson v. Liberty Life Assurance
Co. of Boston, 592 F.3d 215, 225 (1st Cir. 2010) (stating that the
burden is on the claimant to show that a conflict of interest
affected the administrator's decision).


                                     -3-
accomplished on July 5, 2000.            The Kingsburys and Marsh & McLennan

exchanged correspondence over the next year and a half, debating

Hutcheon's     benefit    eligibility      under     the   plan.       During   this

process, the plan scoured its records for information on Hutcheon,

but nothing surfaced.        At the plan's request for more information,

Kingsbury produced, among other things, a ledger from the Social

Security Administration indicating that Hutcheon worked for Marsh

&   McLennan    between    1956    and    1977,    an   affidavit      by   Hutcheon

attesting that she had been employed by Marsh & McLennan from May

1956 to February 1977, and an affidavit by Richard Kingsbury

reciting his conversations with Hutcheon and other past and current

Marsh   &   McLennan      employees      about    Hutcheon's    eligibility      for

benefits.      Hutcheon died in April 2008; Kingsbury purports to be

her sole heir.

            In July 2009, Kingsbury submitted what the plan construed

as a formal claim for benefits on Hutcheon's behalf, and on January

15, 2010, the plan issued a letter denying the claim.                   The letter

stated that the plan does not maintain records for individuals who

do not have a current or potential entitlement to benefits under

the plan and that it does not maintain records affirmatively

evidencing that a person does not have a current or potential

entitlement.       The    letter    also    stated      that   Marsh    &   McLennan

maintains controls to ensure the accuracy and reliability of its

records.     The letter further noted that Kingsbury failed to come


                                         -4-
forward with any additional information or documents. Finally, the

letter      described    several       circumstances        under    which    a   former

employee would not be entitled to benefits under the plan.

Kingsbury appealed the denial to the plan's benefits determination

committee, which also denied her claim, adopting the analysis set

forth in the earlier denial letter.                  Kingsbury thereafter sought

judicial review.

               The plan administrator's decision to deny the claim was

measured and well considered; the plan exerted substantial effort

researching the claim and searching for evidence of Hutcheon's

purported entitlement, as evidenced by the correspondence between

Marsh & McLennan and the Kingsburys, and it received and considered

evidence from the Kingsburys supporting Hutcheon's entitlement.

While      Kingsbury    argues       that   there    is     no   conclusive   evidence

supporting the plan's determination, it is not surprising that the

plan    does    not    have    any    documentation         indicating   that     either

Hutcheon no longer was eligible for benefits, or never was eligible

in   the    first     place,   some     thirty      years    after   Hutcheon     ceased

employment with Marsh & McLennan.                     Kingsbury cites statutory

authority to support her argument that the plan, as a fiduciary,

was required to maintain complete and accurate records, see 29

U.S.C. § 1027, but, indeed, that statute requires a plan to

maintain certain records relating to plan participants for only six

years. Moreover, the plan enumerated many reasons why Hutcheon may


                                            -5-
not have a current entitlement to benefits; for example, she may

have already received a distribution of her plan contributions or

benefits. Notably, none of the competent evidence presented by the

Kingsburys establishes that Hutcheon was eligible to participate in

the plan, was vested in the plan, was entitled to a plan benefit at

any point, or had not already received any benefit due to her.

Kingsbury   essentially   asks   the    court   to   hold   that   the   plan

administrator acted in an arbitrary and capricious manner by

declining to adopt a rebuttable presumption that employees who may

be eligible under the terms of the plan have a current entitlement

to benefits.   Like the district court, we find no basis for such a

holding.

            Because Hutcheon's claim is largely based on speculation

and hearsay, and because of the dearth of evidence as to Hutcheon's

eligibility under the plan, the plan's demonstrated effort in

researching the claim, and its plausible explanation for Hutcheon's

ineligibility, the Court cannot say that the plan administrator's

denial was arbitrary, capricious, or an abuse of discretion.

Accordingly, summary judgment granted by the district court in

favor of Marsh & McLennan is affirmed.          Because we affirm on the

merits, we need not reach the statute of limitations issue.




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