                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-18-1997

Bollman Hat Co v. Root
Precedential or Non-Precedential:

Docket 96-1191




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                            ___________

                            No. 96-1191
                            ___________


                       BOLLMAN HAT COMPANY

                                v.

                         KEVIN T. ROOT;
                     DALE E. ANSTINE, P.C.

                                Bollman Hat Company, as sponsor
                                of the Bollman Hat Company Health
                                and Welfare Benefits Plan,
                                                       Appellant


         _______________________________________________

         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
               (D.C. Civil Action No. 94-cv-07569)
                       ___________________


                    Argued January 14, 1997

                 Before: SLOVITER, Chief Judge,
              GREENBERG and SCIRICA, Circuit Judges

                    (Filed: April 18, l997)


J. FREEDLEY HUNSICKER, JR., ESQUIRE (ARGUED)
SUSAN M. ROCHE, ESQUIRE
Drinker, Biddle & Reath
1345 Chestnut Street
Philadelphia National Bank Building
Philadelphia, Pennsylvania 19107-3496

  Attorneys for Appellant


THOMAS P. LANG, ESQUIRE (ARGUED)
Law Offices of Dale E. Anstine, P.C.
Two West Market Street
P.O. Box 952
York, Pennsylvania 17405




                                1
WAYNE C. PARSIL, ESQUIRE
Law Offices of Dale E. Anstine, P.C.
131 East Grant Street
Lancaster, Pennsylvania 17602

  Attorneys for Appellees
  Kevin T. Root and Dale E. Anstine, P.C.


JOSEPH M. MELILLO, ESQUIRE
Angino & Rovner
4503 North Front Street
Harrisburg, Pennsylvania 17110

  Attorney for Amicus Curiae Appellee,
  Pennsylvania Trial Lawyers Association


                          __________________

                       OPINION OF THE COURT
                        __________________


SCIRICA, Circuit Judge.


           This appeal involves an ERISA plan's subrogation

rights, specifically whether a plan must contribute to the legal

expenses of a plan participant's recovery against a third party.

 We addressed this issue in Ryan by Capria-Ryan v. Fed. Express

Corp., 78 F.3d 123 (3d Cir. 1996), decided after the district

court here rendered judgment.    In this appeal we are asked to

distinguish Ryan or in the alternative to reconsider our holding

in Ryan.

                                  I.

           Bollman Hat Company sponsors a self-insured, ERISA-

regulated employee benefit plan.       After a Bollman employee, Kevin

Root, was injured in a motorcycle accident, the Plan paid him

$100,197.92 for his medical expenses.      Thereafter, Root sued the




                                  2
third party responsible for his personal injuries and obtained a

 $215,000.00 settlement.

          Bollman sought full reimbursement from Root in

accordance with § 10.8 of the Plan, which provides:
In the event of any payment under the Plan to any covered person,
          the Plan shall, to the extent of such payment, be
          subrogated, unless otherwise prohibited by law, to all
          the rights of recovery of the covered person arising
          out of any claim or cause of action which may accrue
          because of alleged negligent conduct of a third party.
           Any such covered person hereby agrees to reimburse the
          Plan for any payments so made hereunder out of any
          monies recovered from such third party as the result of
          judgment, settlement, or otherwise . . . .


(emphasis added).   Root complied with Bollman's request for

reimbursement in part, but withheld $30,507.13 to pay a portion

of the attorney's fees and costs incurred in obtaining the third

party settlement.

          Bollman contends the terms of the Plan require full

reimbursement and do not allow Root to withhold money for

attorney's fees.    Bollman also maintains Root expressly agreed to

full reimbursement when he signed a Reimbursement Agreement

before receiving the $100,197.92 from the Plan.    The

Reimbursement Agreement provides:
I, Kevin T. Root, understand and acknowledge that my medical plan
          has a reimbursement provision which provides that
          medical benefits paid under the plan are to be
          reimbursed up to the amount of such benefits paid from
          any payments, awards or settlements which may be paid
          by any third party.


(emphasis added).




                                 3
          As sponsor of the Plan, Bollman brought suit against

Root in district court for $30,507.13.1

  Following stipulations of fact and cross-motions for summary

judgment, the district court granted summary judgment to Root.

Finding Root's personal injury litigation substantially benefited

Bollman, the district court held Bollman would be unjustly

enriched if Root bore the full burden of litigation costs.

Bollman appeals, citing our intervening decision in Ryan by

Capria-Ryan v. Fed. Express Corp., 78 F.3d 123 (3d Cir. 1996).

                                 II.

             Bollman states in its complaint that jurisdiction

arises under the Employee Retirement Income Security Act of 1974

("ERISA"), 29 U.S.C. §§ 1001-1461.     A case may arise under ERISA

where the suit is filed by a plan sponsor who is also a

fiduciary.    See Northeast Dep't ILGWU Health and Welfare Fund v.

Teamsters Local Union No. 229 Welfare Fund, 764 F.2d 147, 153 (3d

Cir. 1985) (we must "narrowly and literally" interpret ERISA's

civil enforcement provision, 29 U.S.C. § 1132, which allows only

a participant, a beneficiary, or a fiduciary to sue).    A plan

sponsor is a fiduciary only "to the extent" it acts in a

fiduciary capacity.    29 U.S.C. § 1002(21)(A) (definition of

"fiduciary").    See also Malia v. General Elec. Co., 23 F.2d 828,

833 (3d Cir.), cert. denied, 115 S. Ct. 377 (1994).



1.    The parties stipulated that $30,507.13 is the amount due if
defendants prevail. Bollman named as a defendant Dale Anstine,
P.C., who holds the disputed $30,507.13 in an escrow account
pending resolution of this matter.




                                  4
          Bollman has limited the "extent" to which it is a

fiduciary by delegating some of its fiduciary duties.     At least

one circuit has held a suit brought by a plan sponsor as a

fiduciary does not arise under ERISA unless the action is related

to the fiduciary duties retained by the plan sponsor.   See Coyne

& Delany Co. v. Selman, 98 F.3d 1457, 1465 (4th Cir. 1996).    Cf.

Northeast Dep't, 764 F.2d at 154 ("[O]ne's status as fiduciary

under ERISA is dependant upon one's relationship to a particular

plan.")   It is unclear whether Bollman retained fiduciary duties

which are in any way relevant to this lawsuit.    But we do not

need to resolve this issue here.    Even if our jurisdiction does

not arise under the statute itself, we nonetheless have

jurisdiction arising under the federal common law developed

pursuant to ERISA.   See Airco Indus. Gases, Inc. Div. of the BOC

Group, Inc. v. Teamsters Health and Welfare Pension Fund of

Philadelphia and Vicinity, 850 F.2d 1028, 1033-34 (3d Cir. 1988)

(ERISA case may arise under federal common law where it does not

arise directly under the statute).

          Federal question jurisdiction will support claims

arising under federal common law as well as those of a statutory

origin.   See Illinois v. City of Milwaukee, Wis., 406 U.S. 91,

100 (1972).   A case arises under federal common law if the issue

presented is one "of central concern" to ERISA.    Airco, 850 F.2d

at 1033 (quoting Franchise Tax Bd. of the State of Cal. v.

Constructions Laborers Vacation Trust for S. Cal., 463 U.S. 1,

26-27 (1983)).   This is such a case.   See, e.g., Provident Life &

Accident Ins. Co. v. Waller, 906 F.2d 985, 991 (4th Cir.)



                                5
(holding the issue of "whether federal courts should impart

unjust enrichment principles into the gaps left by ERISA" is one

of central concern to the statute), cert. denied, 498 U.S. 982

(1990); Northeast Dep't, 764 F.2d 147 (we have federal question

jurisdiction to determine a question that implicates ERISA).

           We have jurisdiction under 28 U.S.C. § 1291.      Our

review of the district court's grant of summary judgment is

plenary.   See Ryan by Capria-Ryan v. Fed. Express Corp., 78 F.3d

123, 125 (3d Cir. 1996).
                                III.


           Shortly after the district court granted Root summary

judgment, we held in Ryan by Capria-Ryan v. Fed. Express Corp.,

78 F.3d 123 (3d Cir. 1996), that an ERISA plan participant whose

third party recovery is subrogated to the plan may not withhold

attorney's fees where the plan unambiguously requires full

reimbursement.   See id. at 127.       Bollman contends this case is

indistinguishable from Ryan.

                                   A.

           The Ryans were employees of Federal Express and

participants in its ERISA plan.        After Mrs. Ryan gave birth to a

daughter with cerebral palsy and severe brain damage, the Federal

Express plan paid medical expenses.       Meanwhile, the Ryans brought

suit for medical malpractice.   After the suit was settled, the

Federal Express plan demanded full reimbursement.       The Ryans

refused, insisting on withholding a portion of counsel fees

incurred in pursuing their medical malpractice claim.




                                   6
          The Federal Express plan's subrogation provision

provided, "[I]f benefits are paid on account of an illness

resulting from the intentional actions or from the negligence of

a third party, the Plan shall have the right to recover, against

any source which makes payments or to be reimbursed by the

Covered Participant who receives such benefits, 100% of the

amount of covered benefits paid."       Ryan, 78 F.3d at 124.

          The Ryans sued Federal Express.       The district court

granted the Ryans summary judgment based on the common law

doctrine of unjust enrichment.    On appeal, we reviewed the reach

of federal courts to apply common law doctrines in ERISA actions

and reversed, holding that common law may not "override a

subrogation provision in an ERISA-regulated plan on the ground

that the plan would be unjustly enriched if it were to be

enforced as written." Id. We stated:
The language of the subrogation provision at issue here
          unambiguously requires the Ryans to pay back all the
          money they received from the Plan. Since the Ryans
          have failed to establish that the Plan `conflict[s]
          with the statutory policies of ERISA' and have
          similarly failed to show that the common law right at
          issue `is necessary to . . . effectuate a statutory
          policy,' we must reject the Ryans' attempt to establish
          the common law right they would have us recognize.


Id. at 127 (citations omitted).       We also held that "[e]nrichment

is not `unjust' where it is allowed by the express terms of the .

. . plan."   Id. (quoting Cummings by Techmeier v. Briggs &

Stratton Retirement Plan, 797 F.2d 383, 390 (7th Cir.), cert.

denied, 479 U.S. 1008 (1986)).

                                  B.




                                  7
            Root argues Ryan is distinguishable because the

subrogation provision in the Bollman plan is ambiguous and does

not require full reimbursement.       Whether an ERISA plan is

ambiguous is a question of law.       See In re Unisys Corp. Long-Term

Disability Plan ERISA Litig., 97 F.3d 710, 715 (3d Cir. 1996).

            We will look to the words of the Plan to make this

determination.   See id. ("[T]he parties remain bound by the

appropriate objective definition of the words they use to express

their intent.") (quoting Mellon Bank, N.A. v. Aetna Business

Credit, Inc., 619 F.2d 1001, 1013 (3d Cir. 1980)); Ryan, 78 F.3d

at 126.    The Bollman plan requires reimbursement of "any

payments" made by the Plan to a participant, and provides for

subrogation to "all [of Root's] rights of recovery."       As used in

the plan, the words "any" and "all" both mean "the whole of" or

"every."    Black's Law Dictionary 74, 94 (6th ed. 1990).

Notwithstanding the universal scope of "any" and "all," Root

attempts to distinguish the Bollman plan, which called for "100%"

reimbursement.    We see no distinction.    On this point, we find

the Ryan plan and the Bollman plan to be materially identical and

the Bollman plan to be unambiguous.

            Root also contends the Plan is ambiguous on Bollman's

duty to pay Root's attorney's fees because it provides, "The

Company shall pay fees and costs associated with the enforcement

of the Plan rights."    But the application of this provision is

expressly limited to "enforcement of the Plan rights," i.e.

actions in which the Plan enforces its own rights.      It does not




                                  8
require the Plan to fund actions to enforce the independent

rights of a plan beneficiary against a third party.

                                  C.

           Root maintains the Reimbursement Agreement he signed is

ambiguous because it does not specifically address attorney's

fees.   But the Reimbursement Agreement requires reimbursement "up

to the amount of such benefits paid."       A plan or agreement need

not specifically address attorney's fees in order to

unambiguously require full reimbursement.2

                               IV.

          The major thrust of Root's argument is that Ryan was

incorrectly decided and should be overruled.      Amicus, the

Pennsylvania Trial Lawyers Association, also urges us to

reconsider our holding in Ryan.       Of course, a panel of our court

cannot overrule a prior published decision.3      Only the court en

banc may do this.   See Third Circuit I.O.P. 9.1.

2.    Root also argues the Reimbursement Agreement is an
unconscionable adhesion contract. But the parties' stipulations
of fact, which were the sole factual basis for the district
court's decision on summary judgment, do not contain facts
necessary to support this argument. Generally we do not consider
facts raised for the first time on appeal. See Harris v. City of
Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994).

3.    We note the holding in Ryan has support in the case law.
See Cutting v. Jerome Foods, Inc., 993 F.2d 1293, 1298-99 (7th
Cir.) (declining to adopt federal common law rule preventing full
reimbursement where the clear language of an ERISA plan requires
full reimbursement), cert. denied, 510 U.S. 916 (1993); Blackburn
v. Becker, 933 F. Supp. 724, 729 (N.D. Ill. 1996) (employee may
not withhold attorney's fees because "there is no reason to
fiddle with an unambiguous plan provision which the parties
freely entered into."); Trident Reg'l Health Sys. v. Polin, 948
F. Supp. 509, 514 (D.S.C. 1996) ("[F]ederal courts do not rewrite
the unambiguous terms of an ERISA plan . . . ."); Provident Life
& Accident Ins. Co. v. Williams, 858 F. Supp. 907, 912 (W.D. Ark.
1994) (allowing plan participants to withhold attorney's fees but



                                  9
          Nonetheless, amicus contends Ryan will lead to

inequitable results where a plan participant's third party

recovery is less than the plan's subrogation claim plus

attorney's fees.   But Root's third party settlement fully

financed his attorney's fees and the subrogation claim.      We will

not address hypothetical scenarios.

          Amicus also contends Ryan may hinder settlement of

claims by plan participants against third parties.   This prospect

is troublesome.    But Ryan holds only that we must uphold

unambiguous plan terms that do not conflict with ERISA's

statutory policies.   Depending on the circumstances, parties to a

subrogation agreement may still be able to negotiate compromises

on attorneys' fees.

                                 V.

          Finally, Root raises an issue apparently not raised in

Ryan.   Citing the common law on subrogation, Root maintains that

a subrogee may not recover more than the subrogor.    Although his

argument is not explicit, it appears Root advocates a pro rata
(..continued)
recognizing that "if the right to reimbursement were
contractually defined, the parties could expressly agree that
reimbursement would be the first money out of the settlement
monies with no deduction for attorneys fees and costs.");
Thompson v. Fed. Express Corp., 809 F. Supp. 950, 958 (M.D. Ga.
1992) (holding plan participant may not withhold portion of
attorney's fees where plan required full reimbursement). But see
Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985, 993
(4th Cir.) (requiring reimbursement under theory of unjust
enrichment because ERISA indicates Congress's desire to ensure
that plans are administered equitably and "that no one party, not
even plan beneficiaries, should unjustly profit."), cert. denied,
498 U.S. 982 (1990); Dugan v. Nickla, 763 F. Supp. 981, 984-85
(N.D. Ill. 1991) (reducing reimbursement to reflect payment of
attorney's fees, despite plan language requiring full
reimbursement).




                                 10
reduction of the Plan's subrogation lien, i.e. the Plan's

recovery should be limited, as Root's recovery was limited, by a

pro rata portion of the attorney's fees.    See, e.g., Simmons v.

Cohen, 551 A.2d 1124, 1127 (Pa. Commw. Ct. 1988) (holding that,

where welfare recipients sued to recover SSI awards which were

subrogated to the state department of public welfare, the state

department subrogee had common law duty to contribute to their

legal expenses).

            ERISA is silent on the issue of subrogation.    Ryan, 78

F.3d at 127.    We may adopt a common law principle only if

"necessary to fill in interstitially or otherwise effectuate the

statutory pattern enacted in the large by Congress."       Plucinski

v. I.A.M. Nat'l Pension Fund, 875 F.2d 1052, 1056 (3d Cir. 1989)

(quoting Van Orman v. American Ins. Co., 680 F.2d 301, 312 (3d

Cir. 1982)).    Otherwise, we may not create substantive ERISA

rights.     See Hamilton v. Air Jamaica, Ltd., 945 F.2d 74, 78 (3d

Cir. 1991) (Courts have "no authority to draft the substantive

content in [ERISA] plans.") (quoting Blau v. Del Monte Corp., 748

F.2d 1348, 1353 (9th Cir. 1984), cert. denied, 474 U.S. 865

(1985)), cert. denied, 503 U.S. 938 (1992); Van Orman v. American

Ins. Co., 680 F.2d 301, 312 (3d Cir. 1982).

            Root has not established that full reimbursement of

subrogation claims conflicts with ERISA's policies or that

adoption of a pro rata reduction is necessary to effectuate these

policies.    In fact, the policies underlying ERISA generally

counsel reliance on unambiguous plan language.     Van Orman, 680

F.2d at 312 ("The Supreme Court has emphasized the primacy of



                                  11
plan provisions . . . .").   Although circumstances may arise

necessitating a pro rata reduction in reimbursement, we find

Root's argument in this case unconvincing.

                         VI.   Conclusion

          For the reasons stated, we will reverse the grant of

summary judgment in favor of Root and remand to the district

court to enter judgment in favor of Bollman.   See Ryan by Capria-

Ryan v. Fed. Express Corp., 78 F.3d 123 (3d Cir. 1996).




                                12
