                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


ERNEST LESTER YOUNG, individually        
and as assignee of Interim
Management Incorporated, d/b/a
Interim Health Care, and of the
Estate of Cecilia D. Wall,
                  Plaintiff-Appellant,
                  v.
TEXTRON, INCORPORATED, a Delaware
corporation; THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA;                   No. 00-1686
TEXTRON BENEFITS PLAN, an
employee welfare benefits plan;
DEERE & COMPANY, a Delaware
corporation; JOHN DEERE CONSUMER
PRODUCTS, INCORPORATED, Health and
Dental Plan for Hourly and Salary
Employees, an employee welfare
benefits plan,
               Defendants-Appellees.
                                         
           Appeal from the United States District Court
          for the District of South Carolina, at Rock Hill.
                  Dennis W. Shedd, District Judge.
                         (CA-99-1595-0-19)

                        Argued: May 7, 2001

                       Decided: June 19, 2001

     Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
2                 YOUNG v. TEXTRON, INCORPORATED
Affirmed by unpublished per curiam opinion. Judge King wrote a dis-
senting opinion.


                             COUNSEL

ARGUED: John Martin Foster, Jr., J.M. FOSTER LAW OFFICE,
Rock Hill, South Carolina, for Appellant. Michael T. Brittingham,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.,
Columbia, South Carolina, for Appellees Textron, et al.; Franklin
Grady Shuler, Jr., TURNER, PADGET, GRAHAM & LANEY, P.A.,
Columbia, South Carolina, for Appellee Prudential.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Ernest Young, the husband of Cecilia Wall, sued the employee
benefit plans of Textron, Inc. and Deere & Company under ERISA
for $8,859 expended by Wall during the few months before her death
on April 17, 1995. The expenses were incurred for the assistance pro-
vided by an unlicensed caregiver to permit Wall to "die with dignity."
The Deere Plan, which had succeeded the Textron Plan in providing
benefits to Wall, refused to reimburse Wall’s estate for the expenses
because the expenses were not medically necessary and therefore not
covered by the terms of the plan. The district court agreed and entered
summary judgment in favor of the defendants. We affirm.

  Wall, a resident of Lake Wylie, South Carolina, worked for the
Homelite Division of Textron in Charlotte, North Carolina. In April
1994, she was diagnosed with an inoperable and terminal brain tumor
which, a short time later, forced her to cease working. Her treating
physician "ordered home health care services" beginning in July
                   YOUNG v. TEXTRON, INCORPORATED                     3
1994. Even after Wall stopped working, Textron’s medical benefits
plan (the "Textron Plan") continued to provide Wall with benefits,
compensating her for medical treatment, therapy, and even some cus-
todial care.

   Following Textron’s sale of the Homelite Division to Deere &
Company in August 1994, the Deere medical benefits plan (the
"Deere Plan") succeeded the Textron Plan and provided similar cover-
age to the Homelite Division employees, effective January 1, 1995.
Both plans were administered by The Prudential Insurance Company
of America. Although Homelite Division workers became covered
under the Deere Plan in January 1995, Wall was not provided with
any information regarding the switch in coverage. To the contrary,
when Wall’s husband inquired of a Homelite Division representative
in late summer 1994 about Wall’s medical coverage, the representa-
tive told Young that "because Cecilia was put on permanent disability
before the sale to John Deere, her coverage would stay the same."

   While still receiving benefits under the Textron Plan, Wall’s doctor
issued an order, effective December 18, 1994, instructing that Wall
be given assistance of an unlicensed caregiver for "14 hours per day
as requested by hospice/husband." The stated purposes of prescribing
this caregiver were to help Wall with all activities of daily living; to
prepare and serve meals to Wall as requested by Wall or her family;
and to "provide companionship" for Wall, so as to allow her to "die
with dignity." For the next two weeks, Wall was reimbursed expenses
for this custodial care. Beginning January 3, 1995, however, when the
Deere Plan succeeded the Textron Plan, the administrator refused to
provide reimbursement for expenses of custodial care. This amount
eventually totaled $8,859. The Deere Plan did, however, continue to
pay Wall’s medical expenses. In denying coverage for the custodial
care, the administrator did not refer to any specific plan by name, and
when Young requested a copy of the plan, he was referred to Textron,
who supplied Young with a copy of the Textron Plan. Only after com-
mencing this lawsuit against Textron did Young become aware that
the Deere Plan, rather than the Textron Plan, might have become
applicable to Wall during the period for which benefits were claimed.
Young accordingly joined the Deere Plan as an additional defendant
in this action.
4                   YOUNG v. TEXTRON, INCORPORATED
   On motion for summary judgment, the district court entered judg-
ment in favor of the defendants, determining that the Deere Plan was
the one relevant when considering coverage for the expenses incurred
by Wall during the period from January 1995 to her death in April
1995 and that the Deere Plan’s administrator, in denying coverage for
the $8,859 incurred to pay the unlicenced caregiver, did not abuse the
discretion given the administrator under the plan. This appeal fol-
lowed.

   On appeal, the parties continue to debate which of the plans was
relevant in determining whether Wall’s 1995 expenses were covered.
Resolution of that issue, however, does not advance either party’s
position on appeal. Whichever plan applied, it is clear that Wall had
no coverage for the $8,859 in expenses incurred for "custodial care."
The Textron Plan provides that it does not cover "[c]ustodial care as
determined by the Claims Administrator which is provided primarily
to assist an individual in the activities of daily living." It also provides
that its benefits pay only expenses that are "medically necessary."
Similarly, the Deere Plan provides coverage only to those expenses
incurred for care that is "not mainly Custodial Care." "Custodial care"
is defined by that plan as "care that provides a level of routine mainte-
nance for the purpose of meeting personal needs." Because the
expenses at issue in this case were incurred for services such as pre-
paring and serving meals and providing companionship, they fall
squarely under the custodial care exclusions of both plans.

   Young argues that notwithstanding the language of the plans, Pru-
dential as administrator of both plans provided Wall coverage for cus-
todial care during the last two weeks in December 1994 and that
therefore it should be estopped from denying coverage for the same
type of services thereafter. In interpreting ERISA plans, however, we
have clearly foreclosed the use of an estoppel theory to alter the
unambiguous terms of an ERISA plan. See HealthSouth Rehabilita-
tion Hosp. v. Am. Nat’l Red Cross, 101 F.3d 1005, 1010-11 (4th Cir.
1996). Accordingly, in concluding that there is no coverage under the
unambiguous terms of either the Deere Plan or the Textron Plan, we
cannot consider the fact urged by Young that the plans’ administrator
in fact paid some of the same type of expenses prior to its refusal to
pay the final claim.
                   YOUNG v. TEXTRON, INCORPORATED                      5
  For the reasons given, we affirm the judgment of the district court.

                                                            AFFIRMED

KING, Circuit Judge, dissenting:

   After careful consideration of the record, the briefs, and the oral
argument, I remain unpersuaded that the terms of the Deere Plan
unambiguously exclude coverage for the contested services provided
to Ms. Wall from January 1995 to April 1995. Quite simply, on this
record, neither the description of the services provided, nor Pruden-
tial’s explanation of its basis for denying benefits, sufficiently estab-
lishes that the services fall under the Plan’s custodial care exclusion.

   In the circumstances, I believe the district court’s decision should
be vacated and this case remanded for further development of the
record on the pertinent issues, particularly the applicability of the
Plan’s hospice care coverage. With all respect to my colleagues, I dis-
sent.
