                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-1241
                                   ___________

Larry Melvin; Patricia Melvin,          *
                                        *
             Appellants,                *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas
Yale Industrial Products, Inc.,         *
                                        *
             Appellee.                  *
                                   ___________

                              Submitted: September 15, 1999

                                  Filed: November 26, 1999
                                   ___________

Before McMILLIAN and MURPHY, Circuit Judges, and BOGUE, District Judge.1
                          ___________

McMILLIAN, Circuit Judge.

       Larry Melvin ("Melvin") and his wife, Patricia Melvin (together "appellants"),
appeal from a final order entered in the United States District Court2 for the Eastern
District of Arkansas granting summary judgment in favor of Duff-Norton Co., Inc.


      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
      2
       The Honorable William R. Wilson, Jr., United States District Court Judge for
the Eastern District of Arkansas.
d/b/a Yale Industrial Products, Inc. ("Yale") in this action to recover insurance benefits
under appellee's health care plan ("the Plan"). See Melvin v. Duff-Norton Co., Inc.,
Case No. H-C-98-038, (E.D. Ark. Dec. 11, 1998) (hereinafter "Order"). For reversal,
appellants argue that the district court erred in holding that, in light of certain facts not
genuinely disputed, Melvin's physical damages resulted from an "occupational" activity
and thus did not fall within the definition of a covered "[i]njury" under the clear and
unambiguous terms of the Plan. For the reasons discussed below, we affirm the order
of the district court.

                                       Jurisdiction

      Jurisdiction in the district court was proper based upon 29 U.S.C. § 1132(e) and
28 U.S.C. § 1331. Jurisdiction in the court of appeals is proper based upon 28 U.S.C.
§ 1291. The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a).

                                       Background

       At the time of his plane accident, Melvin was a self-employed farmer and crop
duster. See Order at 1. Melvin solely owned and operated L.M. Aerial Services, Inc.
("L.M. Aerial"), which used specialized aircraft to distribute chemicals onto farming
crops for a per acreage fee. See Joint Appendix at 179 (hereinafter "App."). The
exclusive business of L.M. Aerial was to provide such crop-dusting services for profit.
See Order at 1.

        In June 1996, the Melvin Farms Partnership hired L.M. Aerial to crop-dust three
fields owned by the partnership. See App. at 169. On June 18, Melvin (as the sole
employee of L.M. Aerial) had sprayed two of three fields when rain interrupted his
flight and forced him to land. After the rain subsided, Melvin returned to the air for a
second "run" and completed the dusting of the partnership's fields. See id. at 169-70,
173. Rather than returning directly to the landing strip, Melvin detoured over his son's

                                            -2-
farm (approximately three miles away from the partnership's fields) and began applying
"leftover" chemicals. See Order at 1. Melvin's plane crashed moments later and
Melvin was seriously injured. See id.

       Melvin obtained his health insurance through the group insurance plan
(hereinafter "the Plan") offered by Yale, his wife's former employer. See id. Governed
by the Employee Retirement Income and Security Act of 1974 (ERISA), 29 U.S.C. §§
1001-1461, the Plan does not explicitly grant to the Plan administrator the power to
construe the terms of the Plan. See id. at 1-2. The stated purpose of the Plan is to
provide "for the payment or reimbursement of specific medical and related expenses
incurred by its eligible employees and their covered dependents." Plan at 2. Thus,
when a covered Plan member incurs necessary expenses as a result of an "Illness" or
"Injury" (as defined by the Plan), the Plan pays reasonable and customary charges as
detailed in the schedule of benefits, unless an exclusion precludes recovery. See id. at
21-24. "Injury" (as defined by the Plan) is "only a non-occupational, not self-inflicted
condition caused by accidental means which result in damage to the Covered Plan
Member's body through external force which requires treatment by a Physician." Id.
at 27. The Plan does not define the term "non-occupational." See Order at 2. The Plan
also contains an exclusion for accidental injuries "arising out of, or in the course of, any
work for wage or profit and for which benefits are, or could be, provided through
Worker's Compensation, Occupational Disease law or similar legislation, and/or their
respective waiting period." Plan at 22.

       After the accident, Melvin made a claim under the Plan for his medical expenses
resulting from the plane crash. See Order at 1. In October 1996, the Plan administrator
denied the claim, stating that Melvin's injuries were not covered under the Plan and
specifically citing the Plan's exclusion for injuries incurred while performing "work for
wage or profit." See App. at 49. Appellants then filed suit in federal district court to
recover the benefits. See Order at 1. The parties next filed cross-motions for summary
judgment. See id. at 2.

                                            -3-
        Upon review, the district court held that, under the clear and unambiguous terms
of the Plan, Melvin could not recover benefits as a matter of law. The district court
first noted that the Plan's requirement that a covered "[i]njury" be "non-occupational"
in nature. See id. Giving the term "occupational" its ordinary meaning, the district
court determined that it could not genuinely be disputed that Melvin was engaged in an
"occupational" activity on June 18, 1996, when his aircraft crashed. The district court
accordingly concluded that Melvin's physical damages resulted from an "occupational"
activity and Melvin could not recover benefits under the Plan as a matter of law. See
id. at 4-5. The district court did not reach the applicability of the "work for wage or
profit" exclusion. The district court granted summary judgment for Yale, and this
appeal followed.

                                       Discussion

      We review decisions to grant summary judgment de novo, applying the same
standards as the district court. See Regel v. K-Mart Corp., 190 F.3d 876, 879 (8th Cir.
1999). We will affirm the grant of summary judgment "if the evidence, viewed in the
light most favorable to the nonmoving party, demonstrates that no genuine issue of
material fact exists and that the moving party is entitled to judgment as a matter of
law." Id. (quoting Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1021 (8th
Cir.1998)).

      With respect to the interpretation of an ERISA plan which does not give the
administrator discretionary authority to construe the plan's terms (as in the instant case),
we review the district court's interpretation de novo. See Firestone Tire & Rubber Co.
v. Bruch, 489 U.S. 101, 115 (1989). Furthermore, we give the language "its common
and ordinary meaning as a reasonable person in the position of the [plan] participant,
not the actual participant, would have understood the words." Barker v. Ceridian
Corp., 122 F.3d 628, 632 (8th Cir. 1997) (quoting Chiles v. Ceridian Corp., 95 F.3d
1505, 1511 (10th Cir. 1996) (quotations omitted)).

                                            -4-
       Appellants argue that Melvin's injuries were in fact "non-occupational" and thus
fall within the Plan's definition of compensable injuries, assuming no other Plan
exclusions would preclude recovery. Appellants admit that there are no cases
construing the term "non-occupational" within an ERISA plan and that, accordingly,
the words in the Plan should be "given their plain and ordinary meaning as understood
by a reasonable, average person." Brief of Appellants at 2 (quoting Central States,
Southeast & Southwest Areas Pension Fund v. Independent Fruit & Produce Co., 919
F.2d 1343, 1350 (8th Cir. 1990)).

       Appellants initially contend that, even under the district court's somewhat narrow
definition, Melvin's injuries are appropriately characterized as "non-occupational."
Appellants cite the district court's definition of "occupation" as "a craft, trade,
profession or other means of earning a living: employment, vocation." Order at 4
(quoting Webster's Third New International Dictionary 1560 (1993)). Appellants note
that, although one of Melvin's "means of earning a living" was crop-dusting, Melvin
was not strictly engaged in "earning a living" when he gratuitously sprayed his son's
field. See Brief of Appellants at 12. Accordingly, appellants assert that Melvin's
injuries cannot be characterized as "occupational" under the district court's own
definition.

      Alternatively, appellants argue that the meaning of "non-occupational" is
ambiguous and susceptible to other reasonable interpretations. Appellants note the
procedural history of the case, in which the denial of Melvin's claim initially rested on
the "work for wage or profit" exclusion alone. See App. at 49. Appellants contend that
the administrator's reliance on this exclusion "tacitly acknowledged that Larry Melvin's
injuries met the definition of 'non-occupational'" and, at the very least, illustrated "just
how cloudy the term 'non-occupational' is" on these facts. Reply Brief of Appellants
at 3. Appellants also point to the parties' (and the district court's) apparent confusion
over various hypotheticals at the hearing on the parties' cross-motions for summary

                                            -5-
judgment. See id. at 4. This purported uncertainty "confirmed that 'non-occupational'
is ambiguous when applied to these facts." Id. Finally, appellants note that the
meaning of "occupation" in other contexts typically includes more than just a physical
act and seems integrally tied to compensation. On the latter point, appellants argue that
"[w]ithout some notion of payment, an occupation is no different from a hobby that
someone regularly performs." Id. at 6; cf. Boillot v. Income Guar. Co., 83 S.W.2d 219
(Mo. Ct. App. 1935) (affirming judgment for piano tuner injured in hunting accident
and finding that plaintiff was engaged in recreation, not occupation of hunter or farmer);
6 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 86:34 (1998) (noting
that "[t]he act of engaging in an activity for recreation does not constitute a change of
occupation even though other persons may engage in such activity as their
occupation").

       Appellants assert that this ambiguity can be resolved if "non-occupational" is
interpreted in light of the purposes of the Plan as a whole,3 most especially its manifest
intent to limit double recoveries. Appellants initially note the Plan's language that
"[t]his Plan is not intended to duplicate benefits you are entitled to receive from other
group plans, employer sponsored plans, government programs, prepaid plans . . . or any
other responsible payor/party recovery." Plan at 15. The Plan also indicates that
coverage is excluded for injuries "arising out of, or in the course of, any work for wage
or profit and for which benefits are, or could be, provided through Worker's
Compensation." Plan at 22. Against this backdrop, appellants read the term "non-
occupational" as being "defined operationally by one of the Plan's animating
principles," namely the prevention of double recovery for medical services. Brief of

      3
       Appellants recall that this Court routinely looks to the Plan as a whole and its
purposes in interpreting ambiguous terms. See, e.g., Wilson v. Prudential Ins. Co. of
Am., 97 F.3d 1010, 1013 (8th Cir. 1996) (noting that a court should "construe each
provision consistently with the others and as part of an integrated whole so as to render
none of them nugatory."); Jacobs v. Picklands Mather & Co., 933 F.3d 652, 657 (8th
Cir. 1991).

                                           -6-
Appellants at 14. Accordingly, because Melvin was not engaged in work for wage or
profit when he crashed (and arguably would not have been entitled to Worker's
Compensation for such injuries), Melvin's injuries are best characterized as "non-
occupational." Otherwise, a person might sustain injuries that were "non-occupational"
and yet still not be entitled to benefits if he or she were engaging in work for wage or
profit, presumably an absurd result. See id. at 15.

       We disagree with appellants and hold that the term "non-occupational" is not
ambiguous as applied to the facts of this particular case. Utilizing the ordinary meaning
of "occupation" (for which the district court's dictionary definition seems a fair
approximation), we do not doubt that Melvin was practicing his occupation when he
dusted his son's field for free. As the district court noted, Melvin's actions on the day
of the accident were "directly related to his occupation and employment as a crop
duster." Order at 5. As he dusted his son's field, Melvin used his employer's plane as
well as other tools of his trade, including the "leftover" crop-dusting chemicals. See
id. Melvin also utilized his specialized training and license to perform such aerial
application. See id.

       Appellants' claim that "non-occupational" is ambiguous as applied to these facts
is unsupported. Although the Plan administrator denied Melvin's claim without
explicitly relying on the "non-occupational" term in the Plan's "Injury" definition, see
App. at 49, we attach little significance to this fact. Instead, we must construe the
disputed language "without deferring to either party's interpretation" unless the plan
language specifies otherwise. Wallace v. Firestone Tire & Rubber Co., 882 F.2d 1327,
1329 (8th Cir. 1989) (quoting Firestone Tire & Rubber Co v. Bruch, 489 U.S. 101, 112
(1989)).

       Regarding appellants' analogies to the insurance context where certain
recreational activities have been deemed "non-occupational," we note that such
recreational activities are distinguishable in character from Melvin's in the present case.

                                           -7-
In Boillot v. Income Guar. Co., 83 S.W.2d 219, the sole case cited by appellants, the
injured party was not actually engaged in his own professional activities as Melvin was
here. Thus, our holding does not muddy the clear distinction between occupational and
recreational tasks.4 Moreover, we are not persuaded that compensation is "integrally
linked" to an understanding of "occupation."5 Although charitable crop-dusting may
be more atypical in the professional experience, we remain convinced that Melvin was
engaged in an "occupational" activity at the time of his accident.6

      Analysis of the term "non-occupational" in the context of the Plan as a whole
does not alter our position. The Plan clearly sets up a two-stage process for
determining benefits coverage: (1) the Plan pays a covered Plan member's necessary

      4
       Cf. 6 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 86:19 (1998)
("Questions and representations pertaining to 'occupation' ordinarily refer to the
insured's general, regular employment or vocation, as distinguished from a temporary
and independent activity or avocation.").
      5
         For example, lawyers and doctors often engage in their professional duties on
a pro bono basis and yet are still bound by professional standards of conduct. See, e.g.,
ABA Model Rules of Professional Conduct Rule 1.1 ("A lawyer shall provide
competent representation to a client."), Rule 6.1 ("A lawyer should aspire to render at
least (50) hours of pro bono publico legal services per year.") (1996); AMA Code of
Med. Ethics Opinion E ("A physician shall be dedicated to providing competent
medical service with compassion and respect for human dignity."), Opinion E-9.065
("Each physician has an obligation to share in providing care to the indigent . . . .
Physicians are meeting their obligation, and are encouraged to continue to do so, in a
number of ways such as seeing indigent patients in their offices at no cost or at reduced
cost . . . .") (1996).
      6
        As to the alleged confusion over several hypotheticals at the hearing on the
parties' cross-motions for summary judgment, we read the hearing transcript to indicate
that the district court and the parties were merely trying to discern the line between
"occupational" and "non-occupational" injuries in a thorough and reasoned fashion.
See App. at 232-35. This inquiry in and of itself does not confer ambiguity to the term
"non-occupational."

                                          -8-
expenses incurred as a result of an "Illness" or "Injury" as defined by the Plan, provided
(2) no Plan exclusions or limitations apply. In other words, to receive benefits under
the Plan, a Plan member must fully satisfy the threshold qualification before reaching
the applicability of any exclusions. Appellants' attempt to conflate the meaning of
"non-occupational" with that of the "work for wage or profit" exclusion ignores this
basic tiered structure. As appellee argues, the terms were clearly not intended to have
the same meaning, or else one single term would have been used throughout the Plan.
See Brief of Appellee at 13. Instead, the term "non-occupational" defines a broad
range of compensable injuries and the "work for wage or profit" exclusion limits
recovery for particular types of injuries.7 See id. Melvin's failure to satisfy the
threshold requirement for a "non-occupational" injury precludes recovery in this
instance.

      Because we agree with the district court that Melvin's damages did not result
from a covered "Injury," we need not comment on the applicability of the "work for
wage or profit" exclusion.

                                      Conclusion

      We affirm the order of the district court.




      7
       With this understanding, appellants' anomalous result of exclusion for a "non-
occupational" injury is not as absurd as once implied. As Yale correctly notes, it is
"not uncommon for farmers, crop dusters, musicians or lawyers to perform some
physical activity apart from their occupation for which they receive compensation."
Brief of Appellee at 13. In such situations, the "work for wage or profit" exclusion
might apply, if benefits could also be provided through Worker's Compensation.

                                           -9-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                          -10-
