July 19, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1754
FLORENCE NIGHTINGALE NURSING SERVICES, INC.,
Plaintiff, Appellant,
v.
PAUL REVERE LIFE INSURANCE COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Cyr, Circuit Judge.
William J. McLeod for appellant.
David A. Talman, with whom Phillips, Silver, Talman & Aframe was
on brief for appellee.
Per Curiam. Plaintiff Florence Nightingale Nursing
Per Curiam.
Services, Inc. ("Nightingale") appeals from a district court
judgment summarily disallowing its claim for benefits under an
Employee Retirement Income Security Act ("ERISA") health and
welfare plan ("Plan") issued by defendant Paul Revere Life
Insurance Co. ("Revere"). As summary judgment was proper, we
affirm.
I
I
BACKGROUND
BACKGROUND
On May 15, 1989, James Thoumes, M.D., notified Revere
that its insured, Herbert Striesfield, would require "Private
Duty Licensed nursing care for . . . Acquired Immune Deficiency
Syndrome." Doctor Thoumes explicitly informed Revere that it was
"medically necessary" that Striesfield receive "a minimum of 12
hours daily [nursing] care at his home," in administering medica-
tions and safeguarding him from injury which might result from
his unsteady gait and poor balance.
Nightingale provided the prescribed nursing services
after obtaining a valid assignment of Striesfield's Revere Plan
benefits and after requesting Revere to verify the substance of a
telephone conversation in which, according to Nightingale, Revere
had
confirmed and authorized the following bene-
fits, coverage and payment to [Nightingale] .
. . for Herbert Striesfield's nursing care:
(1) Unlimited skilled nursing care.
(2) Payment to [Nightingale] for nurs-
2
ing care provided upon receipt of
our invoice will be paid at 100%
for fees incurred.
[Nightingale] understand[s] that [its] in-
voice must be attached to a physician[']s
Letter of Medical Necessity ordering the
nursing care required and nursing documenta-
tion.
The record contains no response from Revere.
Later, Nightingale asked Revere to confirm another
telephone conversation in which, according to Nightingale, a
responsible Revere employee had "stated that [Revere] would pay
for C.N.A.s [i.e., certified nurses aides]." Nightingale re-
quested a response within five days in the event there were any
discrepancies between its letter and Revere's understanding as to
the substance of the putative telephone conversation. The record
contains no response from Revere.
Under the heading "What We Do Not Pay," the relevant
Plan language provided:
16. Any service, supply or treatment con-
nected with custodial care. We do not pay
for these services or supplies no matter who
provides, prescribes, recommends or performs
them. Custodial care means service designed
to help family members meet the needs of
daily living whether they are disabled or
not. These services include help in:
a. walking or getting in and out of
bed;
b. personal care such as bathing,
dressing, eating or preparing spe-
cial diets; or
c. taking medications which the family
member would normally be able to
take without help.
3
4
The summary judgment record discloses that the nursing services
provided by Nightingale included: feeding Striesfield, monitor-
ing his diet, making him comfortable, moving his extremities to
improve muscle tone, massage, and assisting him to and from the
bathroom.
Early on, Revere disbursed $3,250.00 in Plan benefits
to Nightingale. Thereafter, however, in reliance on the "custo-
dial care" exclusion, supra at p. 3, Revere denied all further
claims based on Nightingale's nursing services to Striesfield.
Nightingale eventually brought suit in the United
States District Court for the District of Massachusetts. After
the case was referred to a magistrate judge, see 28 U.S.C.
636(b)(1)(B) (1995), Revere moved for summary judgment based on
the "custodial care" exclusion. Nightingale filed its cross-
motion for summary judgment and an opposition to Revere's summary
judgment motion, asserting that the "custodial care" exclusion
was "vague and ambiguous" and that Revere's oral representations
to Nightingale estopped Revere from denying coverage.
The magistrate judge recommended summary judgment for
Revere on the grounds that coverage was plainly foreclosed by the
"custodial care" exclusion and that Nightingale's estoppel claim
was not cognizable because the alleged oral representation or
informal writing upon which it relied could not be used to modify
the unambiguous terms of the Plan. Nightingale filed timely
objection to the magistrate-judge's report and recommendation.
In due course, the district court adopted the report and recom-
5
mendation and Nightingale appealed.
II
II
DISCUSSION
DISCUSSION
A. Standard of Review
A. Standard of Review
Summary judgment rulings are reviewed de novo to
determine whether the pleadings, depositions, answers to inter-
rogatories, and admissions on file, together with the affidavits,
if any, show there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law.
Simon v. FDIC, 48 F.3d 53, 56 (1st Cir. 1995). The evidence is
reviewed in the light most favorable to the party resisting
summary judgment. Id.
B. Plan Benefits
B. Plan Benefits
"[A] denial of benefits challenged under [29 U.S.C.]
1132(a)(1)(B) is to be reviewed under a de novo standard unless
the benefit plan gives the administrator or fiduciary discretion-
ary authority to determine eligibility for benefits or to con-
strue the terms of the plan." Firestone Tire and Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989). As the Revere Plan vests no
such discretion in the Plan administrator or fiduciary, we
conduct plenary review.
1. "Private Duty Nursing"
1. "Private Duty Nursing"
The Plan provides that "reasonable and customary
charges" shall be covered for "[m]edically necessary private duty
nursing ordered by the attending doctor to be provided by a
licensed registered or licensed practical nurse." Although the
6
Plan does not define the term, Nightingale argues on appeal that
a genuine issue of material fact exists as to whether the servic-
es provided Striesfield constituted "private duty nursing."
This argument was asserted for the first time in
Nightingale's objection to the magistrate-judge's report and
recommendation. It was accompanied by evidence purporting to
show that the nursing services provided to Striesfield "included"
services which a reasonable factfinder could consider "private
duty nursing." As a general rule, parties are not entitled to
plenary review of arguments never raised before the magistrate
judge designated to hear and report on dispositive motions
pursuant to 28 U.S.C. 636(b)(1)(B). Paterson-Leitch Co., Inc.
v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91
(1st Cir. 1988) ("We hold categorically that an unsuccessful
party is not entitled as of right to de novo review by the judge
of an argument never seasonably raised before the magistrate.").
Although the district court did not explicitly rule upon the
belated argument relating to the meaning of the term "private
duty nursing," we find no abuse of discretion. See id. at 991
(finding no abuse of discretion in district court's decision to
deny "another nibble at this particular apple" where party failed
to present its claim to magistrate judge in first instance).
In all events, however, the sole evidentiary underpin-
ning for the unpreserved argument advanced on appeal is an
affidavit reviewing the patient file Nightingale maintained on
Striesfield. The affidavit does not specify the types of nursing
7
services provided by Nightingale, nor otherwise reveal which
nursing services, if any, might constitute covered "private duty
nursing." The burden of producing competent evidence sufficient
to demonstrate a trialworthy issue as to whether the particular
services rendered were covered within the "private duty nursing"
provision lay with Nightingale. See McCarthy v. Northwest
Airlines, Inc., No. 94-2282, slip op. at 2 (1st Cir. May 31,
1995) (party resisting summary judgment on issue as to which it
bears ultimate burden of proof "must affirmatively point to
specific facts that demonstrate the existence of an authentic
dispute."); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.
1990) (same). As the Nightingale affidavit failed its mission
even assuming timeliness, there is no reason to suppose further
indulgence would bear fruit. See Paterson-Leitch, 840 F.2d at
991.
2. "Custodial Care" Exclusion
2. "Custodial Care" Exclusion
The Plan defines "custodial care" as:
service designed to help family members meet
the needs of daily living whether they are
disabled or not[, including:]
a. walking or getting in and out
of bed;
b. personal care such as bathing,
dressing, eating or preparing spe-
cial diets; or
c. taking medication which the family
member would normally be able to
take without help.
The evidence presented before the magistrate judge established
that the nursing services provided by Nightingale came squarely
8
within the "custodial care" exclusion: preparation of special
diet, feeding, performing foot massages, "active and passive
Range of Motion exercises," and assisting the patient to and from
the bathroom. Thus, there was no error.1
C. Equitable Estoppel
C. Equitable Estoppel
Nightingale contends that Revere is equitably estopped
from denying benefits under the "custodial care" exclusion
because these nursing services were provided to Striesfield in
reliance on Revere's contrary oral representations. But since
Nightingale has not demonstrated an ambiguity in the language of
the "custodial care" exclusion, the putative oral representations
it attributes to Revere were offered to modify, not merely to
interpret, the ERISA Plan language. Thus, its equitable estoppel
claim cannot succeed. Law v. Ernst & Young, 956 F.2d 364, 370-72
(1st Cir. 1992); Kane v. Aetna Life Ins., 893 F.2d 1283, 1285-86
(11th Cir.), cert. denied, 498 U.S. 890 (1990). See Schoonmaker
v. Employee Sav. Plan of Amoco Corp., 987 F.2d 410, 412 (7th Cir.
1993) (oral representations or "other informal statements" may
not be used to contradict terms of ERISA plan); Greany v. Western
Farm Bureau Life Ins. Co., 973 F.2d 812, 822 (9th Cir. 1992)
(same); Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 59 (4th
Cir. 1992) (same), cert. denied, 113 S. Ct. 1051 (1993); Degan v.
1Nor would the untimely Nightingale affidavit have altered the
"custodial care" exclusion ruling. The affidavit does not state
whether the listed services were among those previously reimbursed by
Revere in the amount of $3,250, nor does it reflect the dollar amount
claimed for the services purportedly qualifying as "private duty
nursing."
9
Ford Motor Co., 869 F.2d 889, 895 (5th Cir. 1989) (same); see
also Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1164 (3d
Cir. 1990) (ERISA plan not subject to amendment by informal
communication between employer and plan beneficiary); Moore v.
Metropolitan Life Ins. Co., 856 F.2d 488, 492 (2d Cir. 1988)
(similar); Musto v. American Gen. Corp., 861 F.2d 897, 910 (6th
Cir. 1988) (clear terms of written employee benefit plan not to
be modified or superseded by "oral undertakings" on part of
employer), cert. denied, 490 U.S. 1020 (1989).
D. Evidentiary Claims
D. Evidentiary Claims
Nightingale appeals various evidentiary rulings by the
magistrate judge. We discuss only the challenged rulings admit-
ting in evidence the essential documentary exhibits proffered by
Revere, consisting of the Plan document and the medical records
Nightingale submitted to Revere.
Nightingale contends that the Plan document itself is
inadmissible hearsay. See Fed. R. Evid. 802. We need not
address Revere's response that the Plan document comes within the
"business records exception" to the hearsay rule, see Fed. R.
Evid. 803(6), since the Plan document itself is not hearsay. See
Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527,
540 (5th Cir.) ("Signed instruments such as wills, contracts, and
promissory notes are writings that have independent legal signif-
icance, and are nonhearsay.") (quoting Thomas A. Mauet, Fundamen-
tals of Trial Techniques 180 (1988)), cert. denied, 115 S. Ct. 82
(1994). Rather, the Plan constitutes a form of verbal act by
10
Revere and Striesfield's employer. Mueller v. Abdnor, 972 F.2d
931, 937 (8th Cir. 1992); see also Kepner-Tregoe, 12 F.3d at 540;
2 John W. Strong et al., McCormick on Evidence 249, at 101 (4th
ed. 1992). The Federal Rules of Evidence explicitly "exclude
from hearsay the entire category of `verbal acts' and `verbal
parts of an act,' in which the statement itself affects the legal
rights of the parties or is a circumstance bearing on conduct
affecting their rights." Fed. R. Evid. 801(c) advisory commit-
tee's note.
At no time has Nightingale suggested that the Plan
document admitted in evidence is not the document executed by
Striesfield's employer and Revere. Instead, Nightingale has
focused on the lack of personal knowledge on the part of the
affiant who attested that a copy of the Plan document was at-
tached to the affidavit. Insofar as this represented an attempt
to assert that the Plan document was not duly authenticated, it
fails to assert a basis for questioning the affiant's statement
that the attached document is a copy of the Plan.
Nightingale likewise objects to the Nightingale medical
records Revere introduced to support its contention that the
nursing services provided by Nightingale were custodial in
nature. As a practical matter, of course, this is an argument
Nightingale cannot afford to win. If Nightingale's own nursing
services records were inadmissible, there would appear to be no
need for Revere to justify its disallowance of Nightingale's
claims under the Plan. In all events, however, the nursing
11
records Nightingale submitted to Revere constituted admissions of
a party opponent, not hearsay, see Fed. R. Evid. 801(d)(2); see
also United States v. Paulino, 13 F.3d 20, 24 (1st Cir. 1994)
(finding money order receipt an adoptive admission tending to
prove appellant financed apartment used for drug distribution,
where receipt was found in appellant's possession, bearing
appellant's name and address, and labeled "May rent"). There was
no abuse of discretion in denying Nightingale's motion to strike
the nursing records.
Affirmed.
Affirmed.
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