                          PUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


THOMAS W. GRESHAM,                    
               Plaintiff-Appellant,
                v.
                                               No. 04-1868
LUMBERMEN’S MUTUAL CASUALTY
COMPANY,
             Defendant-Appellee.
                                      
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
                 J. Frederick Motz, District Judge.
                       (CA-03-2243-01-JFM)

                     Argued: February 2, 2005

                     Decided: April 13, 2005

    Before WILKINS, Chief Judge, WIDENER, Circuit Judge,
    and Robert E. PAYNE, United States District Judge for the
        Eastern District of Virginia, sitting by designation.



Reversed and remanded by published opinion. Chief Judge Wilkins
wrote the opinion, in which Judge Widener and Judge Payne joined.


                           COUNSEL

ARGUED: Francis Joseph Collins, KAHN, SMITH & COLLINS,
P.A., Baltimore, Maryland, for Appellant. Jessica Regan Hughes,
SEYFARTH SHAW, Washington, D.C., for Appellee. ON BRIEF:
Thomas J. Piskorski, SEYFARTH SHAW, Chicago, Illinois, for
Appellee.
2                   GRESHAM v. LUMBERMEN’S MUTUAL
                               OPINION

WILKINS, Chief Judge:

   Thomas W. Gresham appeals an order of the district court granting
summary judgment to Kemper Casualty Company (Kemper)1 on
Gresham’s claims for breach of contract and violation of the Mary-
land Wage Payment and Collection Law, see Md. Code Ann., Lab. &
Empl. § 3-507.1 (1999). For the reasons set forth below, we reverse
and remand for further proceedings.

                                   I.

   The facts are undisputed. In late 1998, Kemper hired several people
to develop a line of professional liability insurance. On December 18
of that year, Gresham accepted a written offer of employment as a
vice president in this division. In particular, Gresham was tasked with
developing a liability insurance program for architects and engineers.
The offer letter provided, in relevant part:

        Your compensation package will consist of:

        ....

        • Severance Protection — One year base salary will be
          paid if terminated without cause.

J.A. 7. Although Kemper makes available a benefit plan that includes
severance pay (the Severance Plan), Gresham’s offer letter neither
referred to nor explicitly incorporated the Severance Plan. Under the
Severance Plan, severance pay is based on the departing employee’s
length of employment; the parties agree that under the terms of the
Severance Plan, Gresham would have been entitled to severance pay
equivalent to only four weeks’ salary. Additionally, the Severance
Plan denies severance pay to an employee who is offered employment
by a purchasing company.
    1
   Kemper is a subsidiary of Lumbermen’s Mutual Casualty Company,
the named defendant in this action.
                   GRESHAM v. LUMBERMEN’S MUTUAL                         3
   In January 2003, Kemper decided to shut down its professional lia-
bility division by putting outstanding policies into "runoff," i.e., not
renewing the policies when they reached the end of their terms. The
runoff process can take up to three years. In March or April 2003,
Kemper paid Gresham a "stay-on" bonus in exchange for his agree-
ment to remain with the company while it sought a buyer for its pro-
fessional liability division. On May 1, 2003, Kemper provided
Gresham with a written, 60-day notice of termination.2 Gresham was
thus notified of a June 29 layoff. The materials provided to Gresham
with the notice included a document entitled "Separation from
Employment," which discussed the Severance Plan.

   Approximately one week after Gresham received the termination
notice, Kemper completed an asset transfer agreement with The St.
Paul Insurance Companies (St. Paul). As part of the agreement, St.
Paul agreed to offer employment to Gresham and five other executive
employees in the professional liability division, and Kemper agreed
to encourage these employees to accept the offers. Although this
agreement was made while Gresham was still employed by Kemper,
he did not learn of its existence until the discovery phase of this litiga-
tion.

   St. Paul subsequently extended an offer of employment to
Gresham. After receiving the offer, Gresham negotiated a "sign-on"
bonus of $60,000 and a severance pay clause. Thereafter, he accepted
the offer as modified.

   Gresham never submitted a letter of resignation to Kemper or
informed anyone at Kemper that he had accepted an offer from St.
Paul. It appears, rather, that the date of Gresham’s transfer from Kem-
per’s payroll to St. Paul’s was negotiated between the two companies
without Gresham’s involvement. As far as Gresham was concerned,
there was no change—he continued performing the same functions at
the same office, but with a different title and for a different employer.
  2
   Kemper describes this document as "notice of a possible termination."
Br. of Def.-Appellee Lumbermen’s Mut. Cas. Co. at 9. There is no dis-
pute, however, that possible became actual when Kemper completed the
asset transfer agreement with St. Paul, as described in the text.
4                 GRESHAM v. LUMBERMEN’S MUTUAL
   When Gresham sought payment of the severance benefit, Kemper
denied it on the basis of Gresham’s "continued employment." J.A. 34.
Gresham subsequently filed this action claiming breach of contract
and violation of the Maryland Wage Payment and Collection Law,
see Md. Code Ann., Lab. & Empl. § 3-507.1. A third count alleged
an alternative claim for violation of the Employee Retirement Income
Security Act of 1974 (ERISA), see 29 U.S.C.A. § 1132(a)(1)(B)
(West 1999), in the event the district court determined that the
employment agreement between Gresham and Kemper constituted an
"employee welfare benefit plan" within the meaning of ERISA, see
29 U.S.C.A. § 1002(1) (West 1999). Following discovery, the parties
filed cross-motions for summary judgment. The district court granted
summary judgment to Kemper, reasoning that Kemper had terminated
Gresham "for cause" under the terms of his employment agreement
because "a corporate executive cannot be simultaneously performing
effective services to two different companies at the same time." J.A.
213. Having reached this conclusion, the district court declined to
consider Kemper’s claim that the severance benefit identified in
Gresham’s employment agreement was subject to the provisions of
Kemper’s Severance Plan or its assertion that Gresham’s state law
claims were preempted by ERISA.

                                 II.

   We first consider whether Gresham’s breach of contract and wage
payment claims are preempted by ERISA. ERISA is a "comprehen-
sive" and "closely integrated regulatory system" that is "designed to
promote the interests of employees and their beneficiaries in
employee benefit plans." Ingersoll-Rand Co. v. McClendon, 498 U.S.
133, 137 (1990) (internal quotation marks omitted). Accomplishment
of the objectives of ERISA is facilitated by its preemption clause, 29
U.S.C.A. § 1144(a) (West 1999), which protects the administrators of
employee benefit plans from "the threat of conflicting and inconsis-
tent State and local regulation," Shaw v. Delta Air Lines, Inc., 463
U.S. 85, 99 (1983) (internal quotation marks omitted); see Alessi v.
Raybestos-Manhattan, Inc., 451 U.S. 504, 523 (1981) (noting that by
enacting ERISA, Congress "meant to establish pension plan regula-
tion as exclusively a federal concern").

  Section 1144(a) provides, in relevant part, that the provisions of
ERISA "shall supersede any and all State laws insofar as they . . .
                  GRESHAM v. LUMBERMEN’S MUTUAL                        5
relate to any employee benefit plan." The term "State law" encom-
passes not only statutes but also common law causes of action, such
as Gresham’s claim for breach of contract. See 29 U.S.C.A.
§ 1144(c)(1) (West 1999) ("The term ‘State law’ includes all laws,
decisions, rules, regulations, or other State action having the effect of
law . . . ."). Thus, if Gresham’s claim "relate[s] to" the Severance
Plan, as Kemper contends, it is preempted by ERISA.

   Under § 1144(a), "[a] law ‘relates to’ an employee benefit plan . . .
if it has a connection with or reference to such a plan." Shaw, 463
U.S. at 96-97. While the scope of preemption is thus quite broad, it
is not unlimited. See Ingersoll-Rand, 498 U.S. at 139. "What triggers
ERISA preemption is not just any indirect effect on administrative
procedures but rather an effect on the primary administrative func-
tions of benefit plans, such as determining an employee’s eligibility
for a benefit and the amount of that benefit." Aetna Life Ins. Co. v.
Borges, 869 F.2d 142, 146-147 (2d Cir. 1989). Generally, when a
state law claim may fairly be viewed as an alternative means of recov-
ering benefits allegedly due under ERISA, there will be preemption.
See Aetna Health Inc. v. Davila, 124 S. Ct. 2488, 2495 (2004)
("[A]ny state-law cause of action that duplicates, supplements, or sup-
plants the ERISA civil enforcement remedy conflicts with the clear
congressional intent to make the ERISA remedy exclusive and is
therefore pre-empted."); Monarch Cement Co. v. Lone Star Indus.,
982 F.2d 1448, 1452 (10th Cir. 1992).

   We addressed the scope of ERISA preemption with respect to a
breach of contract claim in Stiltner v. Beretta U.S.A. Corp., 74 F.3d
1473 (4th Cir. 1996) (en banc). James Stiltner accepted a written offer
of employment from Beretta that included the following language
related to Beretta’s long-term disability plan:

    Long Term Disability: Pays 60% of salary after six months
    of disability (after one year of employment). Payable to age
    70.

Stiltner, 74 F.3d at 1476 (internal quotation marks omitted). As a
Beretta employee, Stiltner enrolled in Beretta’s long-term disability
plan, which provided coverage under essentially the same terms as
those described in the offer of employment. The plan, however,
6                  GRESHAM v. LUMBERMEN’S MUTUAL
included a pre-existing condition limitation. When Stiltner subse-
quently became disabled due to a heart condition, the plan denied
benefits on the basis that the condition was pre-existing. Stiltner sued,
alleging, inter alia, that the offer letter was a contract that obligated
Beretta to pay disability benefits independent of the disability plan.
See id. at 1477, 1479. Although we did not reach a holding regarding
preemption, we stated that the breach of contract claim was "very
likely" preempted by ERISA "because it [sought] to recover benefits
of a sort which are already provided by an ERISA plan, even though
it [sought] to recover them not from the plan itself, but from the
employer directly." Id. at 1480 (emphasis added); see Kress v. Food
Employers Labor Relations Ass’n, 217 F. Supp. 2d 682, 686 (D. Md.
2002) (holding that the plaintiff’s claim for breach of contract to pro-
vide benefits independent of ERISA plan was preempted because
claim was "for the same type of benefits that the . . . ERISA-governed
plan offered" (emphasis added)).

   The dictum in Stiltner notwithstanding, we conclude that there is
no preemption here.3 First, the substantial differences between the
severance provision of Gresham’s employment agreement and the
terms of the Severance Plan—most notably the significantly greater
amount of the benefit promised to Gresham and the absence of any
conditions other than termination without cause—make clear that
Kemper’s promise to pay Gresham severance operated independently
of the Severance Plan. See Crews v. Gen. Am. Life Ins. Co., 274 F.3d
502, 505 (8th Cir. 2001) (holding that contractual obligation to pay
severance was independent of ERISA plan, and thus a breach of con-
tract claim was not preempted, in light of higher amount to be paid
and absence of any discretion).4 Second, there is no indication in the
    3
     Although we discuss only the breach of contract claim in the text, our
reasoning applies equally to the claim under the Wage Payment and Col-
lection Law, because that claim is based on the terms of Gresham’s
employment agreement.
   4
     Kemper relies on Welles v. Brach & Brock Confections, Inc., 14 Fed.
Appx. 668 (7th Cir. 2001), an unpublished decision of the Seventh Cir-
cuit. Welles brought a breach of contract claim for severance benefits
identified in a written offer of employment. The Welles panel held that
the claim was preempted by ERISA because the offer letter (1) expressly
stated that it was merely summarizing Welles’ benefits, (2) precisely
                   GRESHAM v. LUMBERMEN’S MUTUAL                         7
record that severance pay awarded to Gresham pursuant to his
employment agreement would be paid out of funds allocated to the
Severance Plan. In light of these facts, it is evident that Gresham’s
breach of contract claim does not relate to the Severance Plan. We
therefore hold that the claim is not preempted.5

                                   III.

   We now turn to the question of whether the district court properly
granted summary judgment to Kemper. We review the grant of sum-
mary judgment de novo. See Edelman v. Lynchburg College, 300 F.3d
400, 404 (4th Cir. 2002). Summary judgment is appropriate "if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law." Fed. R. Civ. P. 56(c).

  Gresham’s breach of contract claim is governed by Maryland law.
Under Maryland law, "[t]he interpretation of a contract, including the
determination of whether a contract is ambiguous, is a question of
law." Sy-Lene of Wash., Inc. v. Starwood Urban Retail II, LLC, 829
A.2d 540, 544 (Md. 2003). The purpose of contract interpretation is

tracked the severance benefits provided by the relevant ERISA plan, and
(3) referred Welles to the Human Resources Department for additional
information. See Welles, 14 Fed. Appx. at 671. Welles is easily distin-
guished from this case. First, Kemper’s employment offer to Gresham
nowhere stated that it was only summarizing Gresham’s compensation
package generally or the severance benefit in particular. And, the lan-
guage of the severance provision does not track the terms of the Sever-
ance Plan.
   5
     We note additionally that a holding that a breach of contract claim is
preempted by ERISA whenever the plaintiff claims an independent
promise to pay benefits of the same type as benefits also provided by an
ERISA-governed plan would limit employers’ ability to lure desirable
employees by offering benefits better than those available to the rank-
and-file. Indeed, although this fact is immaterial to our analysis,
Gresham asserts that he would not have accepted employment with Kem-
per had his severance benefits been limited to those provided in the Sev-
erance Plan.
8                  GRESHAM v. LUMBERMEN’S MUTUAL
to determine and effectuate the intent of the parties, and the primary
source for identifying this intent is the language of the contract itself.
See Turner v. Turner, 809 A.2d 18, 49 (Md. Ct. Spec. App. 2002).
Contracts are interpreted "as a whole," and "the terms of the agree-
ment are construed consistent with their usual and ordinary meaning,
unless it is apparent that the parties ascribed a special or technical
meaning to the words." Id. (internal quotation marks omitted).

   Under the Maryland rule of objective contract interpretation, a
court must "give effect to the contract’s plain meaning, without regard
to what the parties to the contract thought it meant or intended it to
mean." Id. (internal quotation marks & alteration omitted). The test
for the meaning of an unambiguous contract is "what a reasonable
person in the position of the parties would have thought the contract
meant." Id. (internal quotation marks omitted). Other evidence of the
parties’ intent is relevant only if the contract is ambiguous. See Sy-
Lene of Wash., 829 A.2d at 544.

          A. The Severance Provision Is Not Ambiguous

   The severance provision stated, "One year base salary will be paid
if terminated without cause." J.A. 7. This language is facially unam-
biguous. Kemper maintains, however, that the severance provision is
ambiguous because it does not define cause. Therefore, Kemper
asserts, other evidence of the parties’ intent—specifically, the terms
of the Severance Plan—are relevant. Since the Severance Plan
excludes coverage when an employee accepts a position with a pur-
chasing company, Kemper maintains that Gresham is not entitled to
severance pay.

   Kemper’s argument fails because the term "cause" has an accepted
meaning under Maryland common law, and it therefore is not ambig-
uous. Maryland common law defines cause for termination of
employment as a material breach of the terms of the employment
agreement. See Towson Univ. v. Conte, 862 A.2d 941, 956 (Md.
2004). A breach is material "if it affects the purpose of the contract
in an important or vital way." Sachs v. Regal Sav. Bank, FSB, 705
A.2d 1, 4 (Md. Ct. Spec. App. 1998).

  It is true that what constitutes a "material breach" of an employ-
ment contract is not subject to "a mathematically precise definition"
                  GRESHAM v. LUMBERMEN’S MUTUAL                       9
but rather "varies with the nature of the particular employment." Sha-
piro v. Massengill, 661 A.2d 202, 211 (Md. Ct. Spec. App. 1995).
This does not mean that the term "cause" is ambiguous, however; it
simply means that whether cause existed for termination is usually a
factual question for the jury. See Sachs, 705 A.2d at 7 (concluding
that whether breach of employment contract was material was a ques-
tion of fact to be resolved at trial). For the reasons set forth in Part
III.C., however, as a matter of law there was no cause here to termi-
nate Gresham.

      B. The Employment Agreement Does Not Incorporate
                    the Severance Plan

   Kemper also contends that the employment agreement, by its
terms, incorporated the Severance Plan. Kemper notes that the
employment agreement references several of Kemper’s ERISA plans,
including a pension plan, a supplemental retirement plan, and a profit-
sharing plan. While the employment agreement does not mention the
Severance Plan, Kemper maintains that the agreement nevertheless
incorporates all of its ERISA plans, including the Severance Plan. See
Wells v. Chevy Chase Bank, FSB, 832 A.2d 812, 831 (Md. 2003)
("Maryland law recognizes that parties may agree to define their
rights and obligations by reference to documents or rules external to
the contract."), cert. denied, 124 S. Ct. 1875 (2004). We disagree.

   First, the agreement states that Gresham’s "compensation package
will consist of" various items including "Severance Protection — One
year base salary will be paid if terminated without cause." J.A. 7. This
language simply does not indicate that the severance component is
incomplete without reference to other documents. In contrast, the sal-
ary component explicitly references a "salary program" and thus indi-
cates that other materials may be necessary to understand the terms
of that component. See id. ("$110,000 base salary. Our salary pro-
gram is one that emphasizes salary increases based on merit . . . .").
Second, nothing in the remainder of the employment agreement indi-
cates that the Severance Plan even exists, much less that its terms
govern the payment of severance under Gresham’s employment
agreement. Finally, to the extent it is unclear whether the employment
agreement incorporates the Severance Plan by reference, this uncer-
10                GRESHAM v. LUMBERMEN’S MUTUAL
tainty should be resolved against Kemper, the drafter of the agree-
ment. See King v. Bankerd, 492 A.2d 608, 612 (Md. 1985).

            C. Gresham Was Not Terminated for Cause

   The district court held that Kemper had cause to terminate
Gresham because Gresham accepted employment with St. Paul, thus
rendering his services unavailable to Kemper. Gresham responds that
his transfer from Kemper to St. Paul was made entirely at Kemper’s
instigation and would not have occurred but for Kemper’s sale of the
professional liability division. Gresham contends that because his ter-
mination was not due to any malfeasance on his part, there was no
cause for it and he is entitled to severance benefits.

   Gresham relies on Dahl v. Brunswick Corp., 356 A.2d 221 (Md.
1976). The plaintiffs in Dahl were employees of Brunswick Corpora-
tion; their employment contracts included an entitlement to severance
pay if they were "involuntarily terminated," i.e., terminated "for
actions not within the direct control of the employee when no other
suitable opening [with Brunswick] is available." Id. at 225 (internal
quotation marks omitted). The court concluded, as Brunswick had
conceded, that the plaintiffs had satisfied the plain terms of the sever-
ance clause, stating:

     Although there is a dearth of Maryland authority on point,
     there is ample support elsewhere for the position that when
     part or all of a company is sold and the employees are told
     that they cannot remain with their old employer, their
     employment has been terminated even though they immedi-
     ately begin to work for the new owner.

Id. Having concluded that the plaintiffs had a contractual entitlement
to severance pay, the court went on to consider and reject Bruns-
wick’s various defenses, including whether a novation had occurred.
See id. at 227-31.

   The district court offered two bases for distinguishing Dahl, neither
of which is persuasive. First, the district court noted that the phrase
"other suitable employment" does not appear in Gresham’s employ-
                  GRESHAM v. LUMBERMEN’S MUTUAL                       11
ment agreement and that Kemper does not claim a novation. How-
ever, the consideration of these issues by the Dahl court was not
relevant to, and did not affect, its ruling that the sale of a company
effects a discharge of its employees even if they continue to be
employed by the purchaser. Second, the district court noted that the
purchasing company in Dahl became insolvent after the purchase,
while "Gresham accepted employment with a[n] insurance company
whose financial stability he does not question and that is paying him
at least as well as Kemper had been paying him." J.A. 214. However,
the financial stability of St. Paul is irrelevant to Kemper’s contractual
obligations. Likewise, the terms of Gresham’s employment with St.
Paul are irrelevant to the question of whether he was terminated by
Kemper.

   As the Dahl court noted, other courts have uniformly concluded
that a company terminates its employees when it sells the portion of
the business that employs them, even if the employees immediately
begin work for the purchasing company. See, e.g., Gaydos v. White
Motor Corp., 220 N.W.2d 697, 701 (Mich. Ct. App. 1974); Chapin
v. Fairchild Camera & Instr. Corp., 107 Cal. Rptr. 111, 115-17 (Cal.
Ct. App. 1973); Willets v. Emhart Mfg. Co., 208 A.2d 546, 548
(Conn. 1965); Matthews v. Minn. Tribune Co., 10 N.W.2d 230, 232
(Minn. 1943). These courts have noted that when an employer sells
its business, it "ma[kes] certain that it [can] no longer fulfil its part
of the employment relationship" and thereby is considered to have
terminated the employees. Willets, 208 A.2d at 548; accord Mat-
thews, 10 N.W.2d at 232. These courts have also rejected the notion
that the employee’s voluntary acceptance of a position with the pur-
chasing company precludes the payment of severance:

       There is no merit to the claim that the termination of the
    plaintiffs’ employment by the defendant was voluntary on
    their part. It is true that the acceptance by the plaintiffs of
    new positions with [the purchasing company] was volun-
    tary. We are not concerned with the new jobs but, rather
    with the old ones. That termination was entirely involuntary
    on the part of the plaintiffs. The defendant sold its business,
    or that part of it in which the plaintiffs were engaged, and
    by its voluntary act made it wholly impossible for the plain-
    tiffs to continue that employment.
12                 GRESHAM v. LUMBERMEN’S MUTUAL
Willets, 208 A.2d at 548 (emphasis added); accord Chapin, 107 Cal.
Rptr. at 116 ("The termination was entirely involuntary on the part of
the Employees. Fairchild sold Memory Products . . . and by its volun-
tary act made it wholly impossible for the Employees to continue
their employment with Fairchild.").

   The cases discussed in the above paragraph were cited with
approval in Dahl, and the Dahl court adopted the same rule that these
cases advocate. Under that rule, an employee is "terminated" for pur-
poses of a severance agreement when his employer sells the business
in which the employee works. See Dahl, 356 A.2d at 225. This is true
notwithstanding that the employee may voluntarily accept employ-
ment with the purchasing company. The salient point is that the
employer, not the employee, has ended the employment relationship
by selling the business.

   Under this rule, the district court erred in granting summary judg-
ment to Kemper. Kemper sold its professional liability business to St.
Paul, thereby making itself unable to fulfill its part of the employment
agreement with Gresham. That Gresham voluntarily accepted a posi-
tion with St. Paul does not alter the fact that Kemper, by its sale of
the professional liability line, made it impossible for Gresham to con-
tinue his employment.6

                                   IV.

     For the reasons set forth above, we reverse the grant of summary
  6
    We also reverse the grant of summary judgment on Gresham’s claim
under the Maryland Wage Payment and Collection Law. That Act autho-
rizes an award of treble damages to an employee if an employer with-
holds payment of a wage in violation of the Act, unless the failure to pay
is "a result of a bona fide dispute." Md. Code Ann. § 3-507.1(b). We
leave it to the district court to address in the first instance Kemper’s
claim that severance pay is not "wages" within the meaning of the Act.
But cf. Stevenson v. Branch Banking & Trust Corp., 861 A.2d 735, 749
(Md. Ct. Spec. App. 2004) ("Given the broad language of the statute and
its remedial purpose, we conclude that the scope of Maryland’s Wage
Payment Act extends to the type of severance pay that represents
deferred compensation for work performed during the employment.").
                GRESHAM v. LUMBERMEN’S MUTUAL                13
judgment to Kemper and remand for further proceedings consistent
with this opinion.

                                  REVERSED AND REMANDED
