
USCA1 Opinion

	




          February 4, 1993  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1947                                  DONATO F. PIZZUTI,                                Plaintiff, Appellant,                                          v.                                POLAROID CORPORATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Joseph J. Brodigan, with whom  William D. Gardiner, James M.               __________________             ___________________  ________          Langan,  and  Langan,  Dempsey  &  Brodigan, were  on  brief  for          ______        _____________________________          appellant.               Francis  H.  Fox, with  whom  Scott  C. Moriearty,  Marianne               ________________              ___________________   ________          Meacham and Bingham, Dana & Gould, were on brief for appellee.          _______     _____________________                                 ____________________                                 ____________________                    TORRUELLA, Circuit Judge.  This appeal arises out of  a                               _____________          summary  judgment  granted  on  behalf  of  Polaroid  Corporation          ("Polaroid") dismissing a breach of contract action brought  by a          former employee, Donato F. Pizzuti ("Pizzuti").1  We affirm.                    The crux of the  lawsuit concerns the interpretation of          Polaroid's Profit Sharing Retirement Plan (the "Retirement Plan")          as well  as that  company's Employee Incentive  Compensation Plan          (the  "Bonus Plan")  with  respect to  Pizzuti's contention  that          Polaroid's employer  contributions from  April, 1976  to January,          1986 were undersubscribed.  Pizzuti based this contention on  the          winning and eventual settlement of  a patent infringement suit by          Polaroid against  Eastman Kodak  Co. ("Kodak") pursuant  to which          Kodak  paid approximately  $925  million in  cash and  short-term          securities  to  Polaroid  for infringements  occurring  from 1976          through 1986.  Pizzuti  contends that those payments require  the          restatement of Polaroid's profits for those years and in turn the          payment  of the additional  benefits and bonuses  that would have          been received from these additional receipts.                    Although  Pizzuti objects  to  the granting  of summary          judgment,  we  believe otherwise.   This  is  a classic  case for          summary  judgment:    no  material  facts  are  in   dispute  and          disposition is dependent  only on the legal interpretation of the          Retirement  and   Bonus Plans.   See  Fed. R.  Civ.  P. 56.   The                                           ___          standard of review of  the district court's decision is  de novo,                                                                   __ ____                                        ____________________          1    Although  originally  brought  as  a  class  action  in  the          Massachusetts  Superior Court,  it  was never  certified as  such          either by the  state court or by the district  court after it was          removed to the federal court.          as only issues of  law are involved.  ITT Corp. v. LTX Corp., 926                                                _________    _________          F.2d 1258, 1261 (1st Cir. 1991).                    The Retirement  Plan is a contribution  plan as defined          in   3(34) of the Employee Retirement Income Security Act of 1974          ("ERISA"),  as amended, 29 U.S.C.   1002(34), and is thus subject          to construction pursuant to federal common law.  Firestone Tire &                                                           ________________          Rubber  Co. v.  Bruch, 489 U.S.  101, 110 (1989).   In construing          ___________     _____          ERISA-governed plans,  we apply "common-sense canons  of contract          interpretation."   Wickman  v. Northwestern  Nat'l Ins.  Co., 908                             _______     _____________________________          F.2d 1077, 1084 (1st Cir.) (quoting Burnham v. Guardian Life Ins.                                              _______    __________________          Co., 873 F.2d 486, 489 (1st Cir. 1989)), cert. denied, 111 S. Ct.          ___                                      _____ ______          581 (1990).  Although the Bonus Plan is governed by Massachusetts          law,  the standard  of interpretation  is similar,  requiring the          court  to  give  nonambiguous  terms  their  usual  and  ordinary          meaning.   Ober v. National  Casualty Co., 318  Mass. 27, 30,  60                     ____    ______________________          N.E.2d 90, 91 (1945).                    A reading of the  Plan leads us to the  same conclusion          reached by the  district court:   "[n]othing in  the language  of          either plan requires Polaroid to revisit a  previously-determined          net profit and recalculate that figure based upon gains or losses          resulting  from subsequent  litigation,  or  any  other  source."          Pizzuti  v. Polaroid  Corp., No.  91-13018-H, slip  op. at  2 (D.          _______     _______________          Mass.  July  9,  1992).    Section 3.01  of the  Retirement  Plan          provides:                      [T]he term "net profit" for any Plan Year                      shall  mean the  total on  a consolidated                      basis  of the  net earnings  of [Polaroid                      and  its  subsidiaries]  for   such  year                                         -3-                      (excluding gains from the  sale, exchange                      or  other  disposition   of  capital   or                      depreciable  assets  not in  the ordinary                      course  of  business),  as   computed  by                      [Polaroid's]  accountants  in  accordance                                                 ______________                      with standard accounting practices .  . .                      __________________________________                      [Polaroid's]  determination  of such  net                      profits  shall  be  conclusive   for  all                                          _____________________                      purposes under the Plan.                      _______________________          (Emphasis added.).                    The  undisputed  evidence  demonstrates  that  standard          accounting   practices  require  that   litigation  judgments  or          settlements  may  only  be  recognized  as  income  in  the  year          received.   This fact is reinforced by  Polaroid's recognition of          the  entire  $925  million  settlement  amount  as  1991  income,          notwithstanding  that Polaroid  undoubtedly would  have benefited          under  the  tax code  had it  been  allowed to  redistribute this          settlement as proposed by Pizzuti.                    Section  3.01  of  the  Bonus Plan  also  provides  for          calculation of "net profits" on an annual basis "by the Company's          accountants  in accordance  with standard  accounting practices,"          and also states  that "[t]he Company's determination  of such net          profit shall be conclusive for all purposes under the Plan."                    There is nothing ambiguous in the indicated language of          the Plans.   See ITT Corp.  v. LTX Corp., supra  at 1261 (whether                       ___ _________     _________  _____          contract term is ambiguous is question of law for the court).  It          requires  that net profits be determined annually, on the year in          which   the  income   is   received,  and   that  the   Company's          determination in this  respect is decisive  and final as  regards          the Plans.  There is nothing more to be said.                                         -4-                    The judgment of the district court is affirmed.   Costs                                                          ________          to appellee.                                         -5-
