Barrs v. Lockheed Martin Corp.

United States Court of Appeals
For the First Circuit

No. 01-1203

NANCY BARRS,

Plaintiff, Appellant,

v.

LOCKHEED MARTIN CORPORATION
(a/k/a LORAL WESTERN DEVELOPMENT LABS),
and JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya and Lipez, Circuit Judges.

Michael J. Traft with whom Carney & Bassil, P.C. and Donald
Peter Welch were on brief for appellant.
Jean M. Kelley with whom Morrison, Mahoney & Miller, LLP was
on brief for appellee Lockheed Martin Corporation.
Edward S. Rooney, Jr. with whom Eckert Seamans Cherin &
Mellott, LLC was on brief for appellee John Hancock Mutual Life
Insurance Company.

April 24, 2002
 BOUDIN, Chief Judge. We are asked principally to

determine whether the plaintiff-appellant, Nancy Barrs, was

entitled under ERISA, 29 U.S.C. § 1001 et seq. (1994), to notice of
certain changes made by her ex-husband, James Barrs, to two life

insurance policies maintained by him through his employer, Ford

Aerospace Communications Corp. ("Ford"). Ford eventually became
part of defendant-appellee Lockheed Martin ("Lockheed"). The facts

are undisputed except as otherwise indicated.

Pursuant to a separation agreement executed by the

Barrses in September 1989 and adopted by Maryland court decree in

December 1989, James Barrs promised to make Nancy Barrs the

irrevocable beneficiary of all of his then-existing life insurance

policies. Included in the list of policies were a basic policy and
an optional policy issued by defendant-appellee John Hancock Mutual

Life Insurance Company ("Hancock") and administered by Ford as part

of its employee benefits plan. The decree also required James
Barrs to make all premium payments on both policies.

In February 1990, the Barrses informed Ford of the decree

and executed a document provided by Ford which assigned to Nancy

Barrs the absolute right to designate the beneficiary under both

policies. On February 28, 1990, Ford acknowledged receipt of the

assignment and returned a copy to Nancy Barrs at her existing

Maryland address with a letter stating that her husband's file had

been "flagged for this information" and promising to notify her

"within 24 hours by registered mail" if his employment was

terminated. Hancock later endorsed the assignment, and Nancy Barrs

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then sent Hancock a form designating herself as primary beneficiary

of both policies.

Loral Western Development Labs ("Loral") acquired Ford in
October 1990 and replaced the previous Hancock policies with new

Hancock basic and optional policies issued to Loral, which retained

the status of all irrevocable assignees under the old policies.
Then, in January 1992, Loral replaced the Hancock optional policy

with one offered by Connecticut General Life Insurance Company

("CIGNA") while retaining the Hancock basic policy. James Barrs,

as a plan participant, received notice of the change; he then

applied for the new CIGNA policy, designating his then-fiancee

Elaine as beneficiary. No notice of the change in policy or the

new beneficiary designation was sent to Nancy Barrs.
James Barrs was terminated from Loral on January 29,

1993. Upon his termination, he opted to continue the CIGNA

optional policy with Elaine (now his wife) as beneficiary but
declined to continue the Hancock basic policy. The next business

day, February 1, 1993, Loral sent to Nancy Barrs' Maryland address

a letter notifying her of her former husband's termination and

indicating that she could convert the Hancock basic policy to an

individual policy within 31 days. The letter was sent by certified

mail (rather than registered mail as promised in the February 28,

1990, letter); in any event, Nancy Barrs never received the letter

because she had moved to Florida in June 1990.

Nancy Barrs did not discover that her former husband had

been terminated until a conversation with her daughter nearly two

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months later, in March 1993. When Nancy Barrs confronted James

Barrs about the policies, he falsely assured her that he had

continued both policies and kept her as the beneficiary. Relying
on these assurances, Nancy Barrs did not seek to verify the status

of either policy with either Loral or Hancock until after James

Barrs' death on April 2, 1994. Only then did she discover that the
Hancock optional policy had been replaced by the CIGNA policy

listing Elaine Barrs as the beneficiary and that the Hancock basic

policy had not been continued after James Barrs' termination.

In April 1997, Nancy Barrs brought suit in federal court

in Massachusetts against both Hancock and Loral; Loral merged into

Lockheed, which has assumed the defense of the case. Excluding

counts later dropped, Nancy Barrs' complaint sought payment of
benefits under both policies, 29 U.S.C. § 1132(a)(1)(B); damages

for failure to provide requested plan information, id. § 1132(c);

and equitable redress for defendants' breach of their fiduciary
duty, id. § 1132(a)(3). In rulings unchallenged on appeal, the

district court granted summary judgment to Hancock and Lockheed on

the first two claims.1

The district court also held that Nancy Barrs' fiduciary

breach claim against Hancock was precluded because she had an

1
The district court held that the denial of benefits claim did
not run against Lockheed as an employer and that Hancock was not
liable because the Hancock basic policy issued to James Barrs had
lapsed and its optional policy had been superceded by the CIGNA
policy. The court also found that the claim for failure to provide
information was only applicable to Lockheed, the plan
administrator, but that Lockheed was not liable because Nancy Barrs
had never made a request for information.

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express remedy against Hancock for denial of benefits under 29

U.S.C. § 1132(a)(1)(B).2 Nancy Barrs does not contest this ruling

in her initial brief on appeal, instead arguing only that Hancock
is liable as a co-fiduciary, see id. § 1105. We need not deal with

this claim given Nancy Barrs' failure to address the district

court's independent and sufficient ground for barring the fiduciary
duty claim against Hancock. See Keeler v. Putnam Fiduciary Trust

Co., 238 F.3d 5, 10 (1st Cir. 2001).

This left open Nancy Barrs' claim for breach of fiduciary

duty against Lockheed based on its failure to notify her when the

Hancock optional policy was replaced by the CIGNA policy and,

separately, its failure to assure her receipt of notice of her

husband's termination. On summary judgment, the district court
held that Lockheed had no obligation to provide Nancy Barrs with

notice of either event, beyond its affirmative promise in the

February 28, 1990, letter. After a bench trial, it held that the
company had substantially fulfilled this promise by its certified

mailing to Nancy Barrs' Maryland address.

Nancy Barrs now appeals, challenging the district court's

ruling on both of her fiduciary obligation claims against Lockheed

and on her claim that the company did not comply with its promise

to notify her by registered mail.3 Further, she contests the

2
See Varity Corp. v. Howe, 516 U.S. 489, 515 (1996); Larocca
v. Borden, Inc., 276 F.3d 22, 28-29 (1st Cir. 2002); Turner v.
Fallon Cmty. Health Plan, Inc., 127 F.3d 196, 200 (1st Cir. 1997).
3
In a new argument, Barrs briefly claims that Lockheed
breached its fiduciary duty by not preventing her husband from
designating Elaine, his new wife, as beneficiary under the CIGNA

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district court's finding at the bench trial that the company did

not receive a change of address card. We review de novo the

district court's determinations on summary judgment; its factual
findings at the bench trial are reviewed under the clearly

erroneous standard. Nat'l Educ. Ass'n--R.I. v. Ret. Bd. of the

R.I. Employees' Ret. System, 172 F.3d 22, 26 (1st Cir. 1999).
The optional policy. Nancy Barrs first argues that

Lockheed had a fiduciary duty to inform her of the substitution of

the CIGNA optional policy for the Hancock optional policy. The

CIGNA policy was not covered by the divorce decree or the

assignment form, so Lockheed's change in policy effectively

eliminated any rights she had as an assignee-beneficiary of the

Hancock policy. Nancy Barrs argues, on several different theories,
that as an assignee-beneficiary she had the same right as her

husband, the plan participant, to be informed of a change that

could result in her loss of benefits.
At the threshold, Lockheed argues that such a claim is

not permitted by the enforcement provision invoked by Nancy Barrs,

namely, 29 U.S.C. § 1132(a)(3), which allows only suits seeking

"other appropriate equitable relief." Traditionally a court of

equity could require a fiduciary to pay damages to repair a breach

of trust. See, e.g., Scott & Fratcher, III Scott on Trusts § 199.3

optional policy. The argument was not advanced below and so is
forfeit. Amcel Corp. v. Int'l Executive Sales, Inc., 170 F.3d 32,
35 (1st Cir. 1999). It is of doubtful merit because the assignment
acknowledged by the company did not cover successor policies in
general or the new CIGNA policy in particular. Cf. Carland v.
Metro. Life Ins. Co., 935 F.2d 1114, 1120-21 (10th Cir.), cert.
denied, 502 U.S. 1020 (1991).

-6-
(1988). But in Mertens v. Hewitt Associates, 508 U.S. 248 (1993),

the Supreme Court read the statutory phrase more narrowly as

limited to forms of relief "traditionally viewed as 'equitable'"
such as mandamus or injunctions and as excluding money damages.

Id. at 255.

The district court said that Nancy Barrs' claim could be
viewed as one for equitable reinstatement of beneficiary status,

cf. Langdon v. Maryland Cas. Co., 357 F.2d 819, 821 (D.C. Cir.

1966); in the alternative, Nancy Barrs says that she is entitled to

equitable restitution. There are problems with both theories--as

to the latter, see Great-West Life & Annuity Ins. Co. v. Knudson,

122 S. Ct. 708, 714-15 (2002)--but we need not definitively resolve

the Mertens remedy issue. This is so because we conclude that no
breach of fiduciary duty occurred.

It is common ground that the life insurance policies at

issue were part of a welfare benefit plan governed by ERISA. 29
U.S.C. § 1002(1)(A). Lockheed, as the named administrator of the

plan, is a fiduciary under ERISA. Id. § 1102(a). And both sides

agree that Nancy Barrs has standing as a prospective beneficiary

under ERISA, id. § 1002(8), to enforce whatever fiduciary duty may

be owed to a beneficiary. Id. §§ 1104, 1132(a)(3). The disputed

issue as to the optional policy is whether ERISA obligated Lockheed

to inform Nancy Barrs of the replacement of the Hancock optional

policy by the CIGNA policy.

In arguing that ERISA does impose such a duty, Nancy

Barrs employs three different theories. First, ERISA imposes

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specified obligations on fiduciaries, mostly regarding the

management of plan assets, 29 U.S.C. §§ 1101-1114, and the

disclosure of general plan information, id. §§ 1021-1031. Among
the latter is a requirement that the plan administrator publish

within a specified period "all modifications and changes" to the

plan "to each participant, and each beneficiary receiving benefits
under the plan." Id. § 1024(b)(1). Nancy Barrs briefly argues

that this last provision entitled her to notice of the switch from

Hancock to CIGNA.

It does not. Nancy Barrs was not "receiving benefits" at

the time of the change, and so section 1024(b)(1) does not appear

to apply to her. In any event, the Department of Labor has power

under 29 U.S.C. § 1024(a)(3) to exempt welfare benefit plans--as
opposed to pension plans--from section 1024(b)(1)'s reporting and

disclosure requirements, and it has by regulation made the

requirement inapplicable to beneficiaries under welfare benefit
plans. 29 C.F.R. § 2520.104b-1(a) & (b) (2001).

Nancy Barrs next argues in her brief that, even without

a specific ERISA directive, plan administrators have a general

fiduciary obligation to "communicate facts affecting the interest

of a beneficiary which the fiduciary knows the beneficiary does not

know and which the beneficiary needs to know in order to protect

her interest." Specifically, she contends that the obvious intent

of the divorce decree was to maintain her interest in her husband's

life insurance, and thus Lockheed had to notify her as an assignee-

-8-
beneficiary of events that eliminated her benefits under an

existing policy. This is the central issue in this case.

ERISA's specific statutory duties are not meant to be
exhaustive of a fiduciary's obligations; federal courts are

expected to flesh out ERISA's general fiduciary duty clause, 29

U.S.C. § 1104(a). Cent. States, S.E. & S.W. Areas Pension Fund v.

Cent. Transp., Inc., 472 U.S. 559, 570 (1985); Franchise Tax Bd. of

Cal. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 24, n.26

(1983). This exercise takes account of traditional trust law but

necessarily adapts it to conform with ERISA's specific provisions

and underlying purpose. Varity Corp., 516 U.S. at 497; Firestone

Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109-12 (1989).

If this case involved a traditional trustee responsible
for managing the financial interests of an individual beneficiary,

Nancy Barrs' demand for personalized information would have some

basis. See Restatement (Second) of Trusts § 173 cmt. d (1959).

However, under ERISA the administrator is not a personal trustee

but rather a fiduciary for the limited purpose of overseeing
whatever plan it creates for what may be thousands of employees and

other beneficiaries. See 29 U.S.C. § 1002(21)(A)(iii). Ordinary

trust principles cannot be transferred wholesale, and, where ERISA

itself specifies a notice requirement, courts must be especially

cautious in creating additional ones.4

4
See Pegram v. Herdrich, 530 U.S. 211, 225-26 (2000); Beddall
v. State St. Bank & Trust Co., 137 F.3d 12, 18 (1st Cir. 1998);
Maxa v. John Alden Life Ins. Co., 972 F.2d 980, 985-86 (8th Cir.
1992), cert. denied, 506 U.S. 1080 (1993).

-9-
 Absent a promise or misrepresentation, the courts have

almost uniformly rejected claims by plan participants or

beneficiaries that an ERISA administrator has to volunteer
individualized information taking account of their peculiar

circumstances.5 This view reflects ERISA's focus on limited and

general reporting and disclosure requirements, 29 U.S.C. §§ 1021,
1022, 1024, and also reflects the enormous burdens an obligation to

proffer individualized advice would inflict on plan administrators.

In general, increased burdens necessarily increase costs,

discourage employers from offering plans, and reduce benefits to

employees. See Varity Corp., 516 U.S. at 497; Mertens, 508 U.S. at

262-63.

Our case illustrates the point. All Lockheed knew was
that Nancy Barrs was the irrevocable beneficiary under the existing

Hancock optional policy. The implication of her position is that

when the company decided for business reasons to adopt the

5
Electro-Mech. Corp. v. Ogan, 9 F.3d 445, 451-52 (6th Cir.
1993); Maxa, 972 F.2d at 985; Stahl v. Tony's Bldg. Materials,
Inc., 875 F.2d 1404, 1409-10 (9th Cir. 1989); Cummings v. Briggs &
Stratton Ret. Plan, 797 F.2d 383, 387 (7th Cir.), cert. denied, 479
U.S. 1008 (1986); Childers v. Northwest Airlines, Inc., 688 F.
Supp. 1357, 1361-62 (D. Minn. 1988); Lee v. Union Elec. Co., 606 F.
Supp. 316, 321 (E.D. Mo. 1985); Allen v. Atlantic Richfield Ret.
Plan, 480 F. Supp. 848, 850-51 (E.D. Pa. 1979), aff'd, 633 F.2d 209
(3d Cir. 1980); Hopkins v. FMC Corp., 535 F. Supp. 235, 239
(W.D.N.C. 1982). See also Jorden, Pflepsen & Goldberg, ERISA
Litigation Handbook § 5.02[A][4] (Supp. 2001). Cf. Bixler v.
Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1300 (3d
Cir. 1993) (once specific request is made, fiduciary may have duty
to convey material information beyond the specific scope of the
request); Eddy v. Colonial Life Ins. Co. of Am., 919 F.2d 747, 750
(D.C. Cir. 1990) (same). But cf. Glaziers & Glassworkers Union
Local No. 252 Annuity Fund v. Newbridge Sec., Inc., 93 F.3d 1171,
1180-82 (3d Cir. 1996) (stock broker had duty to give material
information to a small number of beneficiary pension funds).

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substitute CIGNA policy, it had to look in each employee's file,

look at any assignments that were made (which in Nancy Barrs' case

did not cover substitute policies), look further to the underlying
divorce decree (which also did not cover substitute policies), and

then surmise that Nancy Barrs might want to seek to reform the

decree to reach successor policies.
Finally, Nancy Barrs argues that a special fiduciary

obligation can be derived from provisions added to ERISA in 1984

giving special status to so-called "qualified domestic relations

orders" (QDROs). See Retirement Equity Act of 1984, Pub. L. No.

98-397 § 303(d), 98 Stat. 1426 (1984). Prior to the amendments,

ERISA provided for a general ban on assignment of pension plan

rights, Pub. L. No. 93-406, § 206(d), 88 Stat. 829 (1974); and
while there was no corresponding ban on assignment of welfare plan

benefits, ERISA's broad preemption of all state laws that "relate

to any employee benefit plan," id. § 1144(a), created uncertainty

about how far state-law contracts or decrees assigning ERISA

benefits would be given effect.6
The amendments eliminated both obstacles for assignments

of plan benefit rights that meet the substantive and procedural

requirements for a valid QDRO, see 29 U.S.C. § 1056(d)(3)(B)-(E).

Such orders are made an exception to the anti-assignment provision

covering pension plan benefits, id. § 1056(d)(3)(A), and they are

6
See Mackey v. Lanier Collection Agency & Serv., Inc., 486
U.S. 825, 838 & n.13 (1988); Metro. Life Ins. Co. v. Wheaton, 42
F.3d 1080, 1082-83 (7th Cir. 1994); S. Rep. No. 98-575 (1984), at
18-19, reprinted in 1984 U.S.C.C.A.N. 2547, 2564-65.

-11-
exempted from the general preemption section that has been the

basis of court rulings broadly preempting state-law assignments of

benefits, id. § 1144(b)(7). Boggs v. Boggs, 520 U.S. 833, 841
(1997); Mackey, 486 U.S. at 838; S. Rep. No. 98-575, supra, at 3,

19, reprinted in 1984 U.S.C.C.A.N. at 2549, 2565.7

A beneficiary named in a state decree assigning pension
plan benefits (called an "alternate payee") is entitled to be

notified of the company's procedures for determining whether the

decree is qualified and its ultimate decision as to qualification.

29 U.S.C. § 1056(d)(3)(G). Taken literally, these provisions do

not apply to assignees of welfare plan benefits in light of a

subsequent provision making the entire paragraph establishing plan

duties relating to QDROs inapplicable to plans not subject to the
anti-assignment provision, which is limited to pension plans. Id.

§ 1056(d)(3)(L).

Nevertheless, assuming these QDRO notice provisions do
apply, cf. note 7, above, nothing in them or in any precedent cited

to us imposes any general fiduciary obligation on the plan

administrator to provide personalized information or advice. In

7
Unlike the exception to the assignment ban, the exception to
the preemption provision is not literally limited to pension plans.
Although there is some doubt based on legislative history whether
Congress intended to address welfare benefit plans at all in the
1984 amendments, see S. Rep. No. 98-575, supra, at 18-19, reprinted
in 1984 U.S.C.C.A.N. at 2564-65; H. Rep. No. 98-655, pt. 1, at 42
(1984), four circuits have held based on language and policy that
QDROs assigning welfare benefits are also not preempted. Metro.
Life Ins. Co. v. Pettit, 164 F.3d 857, 863 n.5 (4th Cir. 1998);
Metro. Life Ins. Co. v. Marsh, 119 F.3d 415, 421 (6th Cir. 1997);
Wheaton, 42 F.3d at 1082-84; Carland, 935 F.2d at 1119-20.
Although the issue is not squarely presented in our case, we see no
obvious reason why we would depart from the prevailing view.

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general, a QDRO beneficiary is simply entitled to be paid in

accordance with the decree, 29 U.S.C. § 1056(d)(3)(A), and to be

treated as an ERISA beneficiary like any other, id. §
1056(d)(3)(J). Nothing suggests that QDRO beneficiaries were being

given broader protection than those beneficiaries who were already

protected by the pre-amendment ERISA statute.
In our case, the QDRO entitled Nancy Barrs to be treated

as the beneficiary of whatever payments were due under the covered

policies. However, under the Hancock optional policy, none were

due to anyone: that policy had been superceded by the CIGNA policy

which was not named in the QDRO; nor was Nancy Barrs the

beneficiary. (Similarly, none were due under the basic policy,

since her former husband as policyholder had allowed the policy to
lapse on his termination.) In short, the assignments as to the

named policies were respected, which is all the QDRO required; the

problem lay in other contingencies for which no adequate provision
had been made.

It is easy to be wise after the fact: presumably if
Nancy Barrs' matrimonial lawyer faced the same problem again, he or

she would include in the settlement agreement a provision covering

successor policies.8 Arranging for effective notification as to

key events (e.g., termination, nonpayment of premiums) would be

more difficult, since it would probably require cooperation from

8
We intimate no view as to whether an assignment covering
unspecified future policies would meet the statutory requirements
for a QDRO, see 29 U.S.C. § 1056(d)(3)(C)(iv), and if not, whether
it would be enforceable.

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the plan administrator as well as imaginative drafting. In default

of such protection, regular inquiries by the beneficiary to the

company and insurer would probably be necessary.
Yet these are the commonplace problems of contracts in

general and divorce agreements in particular. Imagine that there

were no ERISA plan but simply a divorce decree requiring that James
Barrs maintain in force a life insurance policy for the benefit of

Nancy Barrs. Assuring compliance would require Nancy Barrs to

guard against the very same threats of lapses in the policy, change

of beneficiary, and against dishonest replies from the obligated

husband. ERISA simply does not provide insurance against such

risks.

The basic policy. With respect to the basic policy, the
problem for Nancy Barrs is not a change of beneficiary under a

replacement policy but rather her husband's failure to continue

paying premiums after his termination by the company. Nancy Barrs
says that she should have been assured notice of this termination.

Insofar as this claim rests on a general fiduciary duty independent

of the company's specific promise, our prior discussion as to why

no affirmative obligation existed covers the basic policy as well.

However, in its February 28, 1990, letter to Nancy Barrs

acknowledging her divorce decree, Ford promised to notify her

"within 24 hours by registered mail" if her husband was

terminated.9 Nancy Barrs claims that Lockheed failed to keep this

9
Nancy Barrs also asserts that in a conversation on or around
February 28, 1990, Joseph Wilson, a Lockheed human resources
supervisor, promised to "protect her rights and notify her in

-14-
inherited promise and this caused her to forfeit her benefits under

the Hancock basic policy. Both sides assume that through this

letter, Lockheed assumed a specific fiduciary obligation
enforceable under ERISA. Where the employer makes a specific

commitment to notify a beneficiary about a specific event relating

to plan benefits, it is at least arguable that the employer
breaches its fiduciary duty if it fails to do so. See Varity

Corp., 516 U.S. at 506; Cleary v. Graphic Communications Int'l

Union Supplemental Ret. & Disability Fund, 841 F.2d 444, 447-49

(1st Cir. 1988). We accept this undisputed premise for purposes of

the present case.

The district court found after a bench trial that

Lockheed had probably sent the notice by certified rather than
registered mail, but in either event without a return receipt

requested. The notice never reached Nancy Barrs because it was

sent to her old address in Maryland, which appeared in the
company's records. The district court credited Nancy Barrs'

testimony that she had sent Lockheed a change of address postcard,

and the court afforded her the common law presumption that the card

was received. See Hagner v. United States, 285 U.S. 427, 430

(1932); Rosenthal v. Walker, 111 U.S. 185, 193 (1884).

However, the district court also heard testimony by the

Lockheed employee responsible for James Barrs' file throughout the

writing if James Barrs sought to change the beneficiary." Wilson
testified at trial that he had no recollection of this
conversation. The district court supportably found this to be no
more than an assurance that Lockheed would prevent James Barrs from
designating a new beneficiary under the covered policy.

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relevant period (Gail Versak), and it believed Versak's assertion

that the postcard was never received. This determination was not

clearly erroneous. Fed. R. Civ. P. 52(a). And, if Versak's
testimony is accepted, it overcomes the rebuttable presumption that

the properly mailed document was actually received. In re Yoder

Co., 758 F.2d 1114, 1118 (6th Cir. 1985).
Nancy Barrs argues that a simple denial by the addressee

should never be enough to override the presumption of receipt. But

Lockheed did not offer merely a bald denial of receipt; it provided

a witness, in a position to know, who offered direct testimony that

the postcard had not been received and could be cross-examined on

any relevant points (e.g., that the notice might have gone astray

inside the company). To demand much more would elevate the
presumption into one that is effectively not rebuttable--which

would hardly be justified by common experience with the postal

system.10 Of course, the denial of receipt raises a question of
witness veracity; but so does the claim of mailing.

Alternatively, Nancy Barrs says that Lockheed breached

its commitment by sending the notice by certified rather than

registered mail. The district court rejected the claim on the

premise that registered and certified mail are essentially the same

10
In a divided decision, the Ninth Circuit did demand something
more, namely, that in addition to the denial the witness provide
testimony as to, inter alia, the operation of the mailroom and the
procedures for receiving, sorting and distributing mail. Schikore
v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956, 964 (9th Cir.
2001). There appears to be little precedent for this kind of
tailoring; in our view, such subjects are fair game for cross-
examination (or independent evidence by the party asserting that
notice was given) but do not justify an appellate directive.

-16-
in that neither automatically includes a return receipt. In fact,

registered mail, unlike certified mail, includes a notice of non-

delivery as part of the service; but as to both "return receipt" is
a separately purchased service. See 39 C.F.R. Pt. 3001, Subpt. C,

App. A, §§ 941-42 (2001). Had Lockheed sent the notice by

registered mail, it would simply have been told by the Postal
Service that it was not deliverable to Nancy Barrs at her Maryland

address.11
Nancy Barrs says that the company's promise to use

registered mail was essentially a promise to ensure actual delivery

since that was her objective in specifying the method to be used.

This confuses her objective with the company's commitment: the

company did not promise that she would receive notice--she could

have asked for that--but only that it would use registered mail to

send the notice.

Nancy Barrs could have, but has not, argued that the
failure to use registered mail caused her injury on a different

theory, to wit, that registered mail entails a notice of non-

delivery and that the company would actually have been prompted by

such a notice to seek out her new address. But apart from the fact

that this argument has not been made, no evidence exists that the

company would have made this effort. Further, the only obvious

11
Registered mail provides for insurance and is commonly used
for mailing valuable goods; it is described by the Postal Service
as its most secure service. 39 C.F.R. Pt. 3001, Subpt. C, App. A,
§ 942.41 (2001). Perhaps use of registered as opposed to certified
mail would have provided greater assurance that the letter would
not be mishandled or lost, but here the obvious problem was the
outdated address for Nancy Barrs in the company records.

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source of a new address was Nancy Barrs' ex-husband, and there is

no reason to think that he would have cooperated, given his own

adverse interest and history of deceit.
For obvious reasons, it is commonly the burden of a party

seeking notification to assure that an up-to-date address is

provided to the party obligated to make notification. Nancy Barrs
could have called the company to assure that her postcard had been

received; or she could initially have requested notification be

made separately to her and to her matrimonial lawyer at their

respective addresses. Cf. 29 U.S.C. § 1056(d)(3)(G)(ii)(III)

(allowing a QDRO beneficiary to require such double notification).

She took neither step.

Ironically, even if she had received notice, there is
some doubt whether her injury would have been prevented. When

Nancy Barrs finally found out in March 1993 about her former

husband's termination, she relied on his assurances that the
policies were paid up and that she was still listed as the

beneficiary. It is unclear why she would have acted differently

had she known two months earlier. However this may be, the company

did send notice and, given that the address had not been updated,

the use of certified rather than registered mail made no

difference.

Affirmed.

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