United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS December 10, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40113
Summary Calendar
ROBERT TATUM; VIRGINIA RENEE TATUM,
Plaintiffs-Appellants,
versus
SPECIAL INSURANCE SERVICES; JOE HILL & ASSOCIATES;
DENISE M. HODGES,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
(9:01-CV-261)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Robert Tatum (Tatum) and Viginia Renee Tatum appeal the
summary judgment awarded defendants against their action seeking
benefits under the employee insurance policy purchased by Tatum’s
employer, Turner Wood Products (TWP), which was administered by
Special Insurance Services (SIS). The Tatums contend that the
policy did not constitute a “plan” for purposes of the Employee
Retirement Income Security Act (ERISA); and that, if the policy is
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
an ERISA plan, SIS was liable for numerous technical violations of
ERISA and Tatum was entitled to benefits under the policy.
There are three steps in the analysis for whether an insurance
policy purchased by an employer is subject to ERISA. See Hansen v.
Continental Ins. Co., 940 F.2d 971, 975-78 (5th Cir. 1991).
The first step is inquiring into whether the plan falls under
the safe harbor regulations. Id. at 976-77. TWP paid the premium
for the policy. The policy therefore fell outside the scope of the
safe harbor exempting certain group benefit programs from ERISA’s
provisions. Id.
The second step is inquiring into whether there is a “plan”.
Id. at 977. In this case, a reasonable person could ascertain from
the policy its intended benefits, its class of beneficiaries, its
source of financing, and its procedures for receiving benefits.
The policy therefore was a “plan”. Id.
The final step is inquiring into whether the plan is an ERISA
plan; it is if the employer is involved in administering the plan
and if the employer has the purpose of benefitting its employees.
Id. at 977-78. Here, there is no dispute that TWP was involved in
administering the plan and intended to benefit its employees.
Therefore, there is an ERISA plan; and summary judgment was
properly awarded against Tatums’ preempted state law claims.
The Tatums contend that SIS was liable for technical
violations of ERISA. These claims were not presented in district
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court so we will not consider them. E.g., Vogel v. Veneman, 276
F.3d 729, 733 (5th Cir. 2002).
The Tatums moved the district court to permit them to amend
their complaint to make such contentions; but, they do not contend
here that the district court erred by implicitly denying their
motion. They have abandoned that issue for appeal. E.g., In re
Municipal Bond Reporting Antitrust Litigation, 672 F.2d 436, 439
n.6 (5th Cir. 1982).
TWP’s policy provided that the single limit benefit period was
52 weeks; that the policy would reimburse the cost of covered
charges; and that it would pay covered charges that were incurred
within one year of the date of an accident. The policy did not
provide for any procedure requiring SIS to preauthorize payments or
services. Tatum’s January 2001 surgery occurred more than one year
after his 2 March 1999 accident. Under the plain language of the
policy, Tatum was not entitled to benefits.
The Tatums’ claim that the statements and conduct of SIS
employees altered the terms of the policy or otherwise entitled
Tatum to benefits amounts to a promissory estoppel claim. “ERISA
disfavors generally arguments based on promissory estoppel or on
alleged modifications of plan documents that are not made via the
plan’s internal amendment process.” Izzarelli v. Rexene Prods.
Co., 24 F.3d 1506, 1517 (5th Cir. 1994). Oral modifications to an
employee welfare benefit plan governed by ERISA cannot form the
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basis for a breach-of-contract claim. Williams v.
Bridgestone/Firestone, Inc., 954 F.2d 1070, 1072 (5th Cir. 1992).
As discussed above, the Tatums have abandoned their
contentions based on the alleged failure of SIS to provide Tatum
with a summary plan description (SPD) or a copy of the policy
itself. We therefore need not address the possible effect of any
non-provision of an SPD or copy of the policy on the Tatums’
estoppel argument.
Even if the Tatums are correct that Tatum was required to
coordinate all of his care through a case manager and that his
telephone calls were not returned after his visit with the
independent medical examiner, the Tatums are attempting to rely on
oral representations to modify the written terms of the policy.
Their estoppel claim is unavailing.
The district court did not err in determining that there were
no genuine issues of material fact. The summary judgment was
proper. See Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc.,
168 F.3d 211, 213 (5th Cir. 1999).
AFFIRMED
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