dissenting.
I agree with the reasoning of the Court in Parts I, II and III A. and B. of its opinion, but I disagree with Part III C. and respectfully dissent from its order vacating the district court’s grant of summary judgment in favor of the Rehab Hospital. To reach that decision, the Court, in Part III C. of its opinion, relies on the Smiths’ theory that § 502(a)(3) of ERISA applies to this case and may permit them to recover on a theory of equitable estoppel. Section 502(a)(3) provides:
(a) Persons empowered to bring a civil action. A civil action may be brought—
(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this sub-chapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan
29 U.S.C.A. § 1132(a)(3) (West 1985). I believe § 502(a)(3) has no application to this case because the Smiths seek to modify or amend the Plan, not to enforce it. Moreover, even if the statute did permit the use of equitable estoppel for the purpose of changing the terms of a plan, I believe that the Smiths have not pointed to any evidence in this record that would show all the tradition*143al common law elements of equitable estop-pel let alone the extraordinary circumstances this Court has previously indicated ERISA requires. Therefore, I would affirm.
The Smiths base their estoppel theory on the Hospital’s December 1986 misrepresentation that Mrs. Smith would receive the same extended coverage under the self-insured group plan the Hospital was then about to adopt that she had been entitled to receive under the old Blue Cross/Blue Shield group plan so long as she was a person in the “employ of the group.” The Court concludes that the word “employ” is so ambiguous that it includes a person who has been totally disabled and comatose, without any reasonable prospect of recovery, for a year and three months. This record shows beyond contradiction that it was apparent soon after Mrs. Smith suffered her stroke that she would never be able to return to work at the Hospital. I do not think the meaning of the word “employ” can be stretched that far. Proof of continuing employment is an essential element of the estoppel Mrs. Smith seeks to impose because the opportunity to convert to a direct pay subscription, the opportunity she claims to have lost, had to be made within thirty days of the time it became apparent that her disability would preclude her return to work under the old Blue Cross/ Blue Shield plan.
I recognize that the phrase “the employ,” as used in the old plan, is broad enough to cover some inactive participants along with active employees, but the abstract possibility that some disabled employees will recover and return to work does not create a genuine issue of material fact about Mrs. Smith’s continued employment1 for purposes of the Plan in December 1986 when the Hospital’s misrepresentations about continued coverage were made to her husband.2
The Smiths never contended in the district court that Mrs. Smith was an employee at any time after her stroke. Mr. Smith admitted in his deposition that his wife’s medical status negated an employment relationship at any time after her injury. When asked how long Mrs. Smith was “employed” by the Hospital, he responded, “until she was sick” and “she has not returned to employment” since. Appendix (“App.”) at 604. When asked whether she continued to work at the time of the changeover in plans, one year and four months after suffering the stroke, he replied, “No, she was in a coma.” Id. at 607. Mr. Smith also said he “believes her disability is permanent and that she will probably never be able to live at home.” Id. at 190.
Accordingly, I am unable to see any genuine dispute of fact over whether Mrs. Smith was still in “the employ” of the Hospital *144when the December 1986 misrepresentations about coverage under the new self-insured plan were made. Unless the Hospital is also estopped from denying that Mrs. Smith was still in its employ in December 1986, its argument that the Smiths could not have detrimentally relied on Mrs. North’s December 1986 misrepresentation about continuing coverage under the new self-insured plan defeats the Smiths’ theory of equitable estop-pel, even at common law. The misrepresentation Mrs. North made about continuing coverage under the new plan caused Mrs. Smith no harm. It was already much too late for her to take advantage of the opportunity to convert- to direct payment that she contends she lost in reliance on Mrs. North’s misrepresentation.
Recognizing this problem, the Court holds alternately that certain acts of the Hospital which indicated that Mrs. Smith was still in the employ of the group may give rise to the extraordinary circumstances we have said are necessary to create an equitable estoppel under § 502(a)(3) of ERISA. See Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1165 n. 10 (3d Cir.1990). Those actions include: (1) the Hospital’s failure to notify Mrs. Smith that she had been terminated; (2) its act of sending her a memo addressed to “Employees with Hartford Medical/Dental Coverage” on November 8, 1989, long after she became disabled; (3) the oral representations Mrs. North made at the December 1986 employee meeting which Mr. Smith attended; (4) the Hospital’s act of furnishing Mr. Smith with a written Transition Provision that ambiguously stated in one provision that persons already receiving benefits under the old plan would not be adversely affected by conversion to the new plan but in another provision indicated that only the more restricted benefits of the new plan would be available, see App. at 35; and (5) the Hospital’s continued remittance of group premiums to Blue Cross/ Blue Shield on Mrs. Smith’s behalf. Mrs. Smith, however, was only one participant in the Plan. Others had an interest. The misleading acts of the Hospital with respect to a single participant cannot adversely affect the other participants or define the meaning of the Plan for them.3 Thus, because this is not a simple bilateral contract between two parties, the act that is perhaps most significant is the continued remittance of premiums to Blue Cross/Blue Shield on Mrs. Smith’s behalf at group rates. This continued from the time of Mrs. Smith’s stroke on August 27, 1985 until the Hospital’s changeover to the new plan in December 1986. In Hozier, we recognized that continued acceptance of a participant’s contributions to a benefit plan may be one of the extraordinary circumstances necessary to create an ERISA estop-pel under § 502(a). See Hozier, 908 F.2d at 1165 n. 10 (citing Rosen v. Hotel & Restaurant Employees & Bartenders Union, 637 F.2d 592, 598 (3d Cir.1981)). Continuing *145payment of premiums or contributions is an obvious necessity if the plan is to remain sound and the rights of other participants to remain secure. Still, I do not think the other acts Mrs. Smith relies on, even when coupled with the continued contributions, create an estoppel under ERISA § 502(a).
The benefits pamphlet and the Blue Cross/ Blue Shield contract constitute the only evidence before us concerning the terms of the old Blue Cross/Blue Shield plan. The benefits pamphlet provides:
If you leave the employ of the Hospital, due to termination of employment, layoff, disability or leave of absence, Blue Cross, Blue Shield and Major Medical coverage may be continued by convening to a Direct-Pay Subscription Agreement.
App. at 809 (emphasis added). The Blue Cross/Blue Shield contract provides:
1. If coverage of a Subscriber is terminated solely because of leaving the employ of the Group while this Contract is in effect, he or she may apply directly within 30 days of the termination to Blue Cross for the applicable Contract issued to direct payment Subscribers under its regulations and at its established charges.
App. at 781 (emphasis added).
This is not a case like hanger v. Monarch Life Insurance Co., 879 F.2d 75 (3d Cir.1989), where ambiguous terms of an agreement are defined by the parties’ course of conduct in carrying it out. As already stated, some abstract ambiguity about the status of a disabled person who has some likelihood of recovery as an employee participant in a benefit plan is not material to Mrs. Smith’s case. Her disability was total and permanent from its onset.
Section 502(a)(3) states a court may use equitable principles to “enforce” the provisions of a plan.4 Here, the use of equitable estoppel to preclude the Hospital from denying Mrs. Smith’s continued employment would amend, rather than enforce, the provision of the old Blue Cross/Blue Shield benefit plan that required a participant who ceased to be in “the employ of the group” to convert to direct-pay within thirty days of termination “due to disability.” Cf. Rodrigue v. Western & Southern Life Ins. Co., 948 F.2d 969, 971 (5th Cir.1991) (rejecting equitable estoppel based on oral representations because express terms of plan control); Cummings v. Briggs & Stratton Retirement Plan, 797 F.2d 383, 389 (7th Cir.), cert. denied, 479 U.S. 1008, 107 S.Ct. 648, 93 L.Ed.2d 703 (1986); see also Straub v. Western Union Tel. Co., 851 F.2d 1262 (10th Cir.1988); Nachwalter v. Christie, 805 F.2d 956 (11th Cir.1986).
Even if equitable estoppel were available to modify the terms of this plan, at trial the Smiths would have the burden of showing all the necessary elements of an estoppel. Thus, the Hospital could not be estopped from denying 'Mrs. Smith’s continued employment unless she has shown that she reasonably relied on the actions that she says caused her to believe she was still in the “employ of the group” in December 1986. There is no evidence in this record showing the Smiths can meet that burden.
Mr. Smith’s assessment of his wife’s prognosis immediately after she suffered her stroke in August 1985, coupled with the quoted language in the March 1985 explanatory pamphlet Blue Cross/Blue Shield had issued to Rehab Hospital group members, advised the Smiths that Mrs. Smith’s group benefits were in jeopardy and that she needed to take action within thirty days to retain coverage. The explanatory pamphlet put Mr. Smith on notice that his wife’s group coverage ended *146when it became apparent that her disability permanently precluded her from returning to work.
There is no evidence of any inquiry by Mr. Smith, between August 1985 when his wife became ill and the day in December 1986 when he says Mrs. North misled him, about who authorized the payment of group premiums on his wife’s behalf, or their source. There is likewise no evidence that Blue Cross/Blue Shield knew of Mrs. Smith’s longstanding total disability. Unless the old plan’s limited conversion privilege is meaningless, Blue Cross/Blue Shield was not obligated to continue benefits unless a timely conversion were made and the premiums applicable to an individual direct-pay plan were paid.5 If Blue Cross/Blue Shield, the insurers under the old plan, were not obligated to continue Mrs. Smith’s coverage at group rates, there does not seem to be any basis for supposing that it would have done so if it had been aware that Mrs. Smith Vas no longer a member of the group.
In any event, an estoppel grounded in reliance on continued group coverage in this case seems to me to amend, rather than enforce, the Hospital’s old plan. Because the estoppel the Smiths seek to create eliminates the need to convert to direct-pay within thirty days of termination, and the evidence shows Mrs. Smith no longer could be considered an employee of the group, it is not among the purposes for which § 502(a)(3) authorizes courts to resort to equitable principles.
I am unable to close this dissent, however, without commenting on the impact that termination of the Blue Cross/Blue Shield extended care benefit has on the Smiths and others like them.6 The feeling of unfairness is palpable. Hopefully, it will not be beyond the power of the courts and Congress to dispel that sense of injustice despite the limitations ERISA puts on the techniques the common law would employ to adjust rigid rules to particular situations. Logic may be the law’s tool but its heart is justice, and the public’s demand for concrete justice will not be contained by the straitjacket of inflexible rules. Thus, in any contract of insurance or indemnity, an insurer’s ability to avoid performance after a risk becomes reality makes the promisor’s covenant to indemnify the promisee against the risk illusory. Cf Armistead v. Vernitron Corp., 944 F.2d 1287, 1296 (6th Cir.1991) (absent clause in agreement permitting plan’s termination, court would not read one into the agreement because to do so would render illusory the employer’s promise to provide after retirement insurance benefits).
An employer’s promise to pay the cost of medical care for its employees is illusory if an employer can unilaterally eliminate or reduce benefits. The employer is then relieved of its promise of indemnity just when indemnity is most needed, and the employee in need of care is deprived of part of what he worked to get. For the employee, there is no quid pro quo. When benefits are thus reduced or snatched away, the promises those employees thought their employers had made to them disappear. Some courts have, nevertheless, held that a self-insured employer can amend or terminate a benefits plan in a way that relieves an employer, in whole or in part, of its promise of indemnity to employees who have already suffered covered disabilities. See, e.g., McGann v. H & H Music Co., 946 F.2d 401 (5th Cir.1991) (allowing employer, in ERISA § 510 discrimination action, to reduce maximum welfare benefit for AIDS after participant became ill because ERISA does not vest rights in welfare benefit plans), cert. denied, — U.S. -, 113 S.Ct. 482, 121 L.Ed.2d 387 (1992); In re White Farm Equip. Co., 788 F.2d 1186, 1192-93 (6th Cir.1986). The rationale of *147these decisions needs examination. Congress’s intent of avoiding vesting of rights in benefit plans may deprive participants of rights under the law of property, but it is not necessarily inconsistent with the existence of rights under the law of contracts. Unfortunately, I think we are unable to reach or consider that issue in this case. Mrs. Smith did not raise the question whether benefits could be terminated after she became disabled until her motion for reconsideration of the district court’s order granting summary judgment. Moreover, even if this question of whether the Hospital’s promise to her was illusory had been raised earlier, or could be otherwise considered on this appeal, Mrs. Smith’s failure to convert to direct-pay would still be likely to preclude recovery because her right to convert, though limited in time, would seem to take the promise of extended care out of the class of promises that are wholly illusory. The conversion requirement is common in both insured and self-insured group plans for health and disability, and the law has long tolerated provisions requiring persons covered by a group insurance policy to convert to direct pay within a limited time after they leave the group. See Guardian, 479 A.2d at 952, n. 7.
The Smiths present a hard case. It is regrettable that neither this Court nor the district court has been able to address directly the illusory promise issue that a restrictive change in an ERISA health care plan presents when a reduction in benefits incident to the adoption of a new plan is applied to disabled participants after they are already receiving benefits under the plan in existence when they became sick and disabled.
Nevertheless, I would affirm the district court’s order granting summary judgment in favor of the Hospital because Mrs. Smith had lost her right to convert to direct-pay at the time of the changeover in plans.7
. "Employed” is defined as "the act of doing a thing and the being under contract or orders to do it.” Black's Law Dictionary 471 (5th ed. 1979). "Employment” is defined as “[ajctivity in which person engages or is employed; normally, on a day-to-day basis.” Id. "The state of fact of being employed; esp. that of serving an employer for wages." Oxford English Dictionary 129 n. 2 (Compact ed. 1981). Because Mrs. Smith has no prospect of reemployment, she no longer meets any of these definitions.
. Similarly, the COBRA amendments with their requirement of express notice of termination do not help Mrs. Smith because she was no longer in "the employ of the group” when these amendments became effective on July 1, 1986, more than ten months after Mrs. Smith suffered her disabling stroke and could no longer return to work. Because COBRA was not in effect when Mrs. Smith lost all prospect of returning to work, I think its notice and continuing coverage requirements are inapplicable to this case. If COBRA were applicable, it would have required not only notice of termination of employment but also continuing coverage for eighteen months for plan years beginning on or after July 1, 1986. 29 U.S.C.A. §§ 1161, 1162(2), 1163(2) (West Supp. 1993). The relief the Court grants Mrs. Smith on her estoppel theory goes beyond COBRA.
COBRA’s notice requirement is not foreign to state case law on termination of health and accident insurance after disability occurs. See Guardian Life Ins. Co. v. Zerance, 505 Pa. 345, 479 A.2d 949, 953 (1984) (clear provisions of termination clause in question were part of insurance contract and permitted termination of coverage, upon notice, after the covered disability was incurred, but only upon express notice). Unfortunately for Mrs. Smith, state law does not apply to the Hospital's self-insured plan. See 29 U.S.C.A. § 1144(a) (West 1985) (ERISA preempts all state laws relating to employee benefit plans); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983); see also FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990) (any state laws regulating insurance are preempted by ERISA for self-funded plans).
. Generally, liability under ERISA is imposed on the Plan itself. Here the Court holds that the employer, not the Plan, can be liable. Some cases have allowed an ERISA action based on equitable estoppel against an employer reasoning it would not adversely affect the actuarial soundness of the fund. See, e.g., Rodrigue, 948 F.2d at 969; P.I.A. Michigan City v. National Porges Radiator, 789 F.Supp. 1421 (N.D.Ill.1992); Stenke v. Quanex Corp., 759 F.Supp. 1244 (E.D.Mich.1991); Bogue v. Ampex Corp., 750 F.Supp. 424 (N.D.Cal.1990), aff'd, 976 F.2d 1319 (9th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993). While the Plan has a fiduciary relation to the beneficiaries, the employer may not. Use of estoppel may blur that distinction. The cases that have imposed ERISA liability on an employer do not discuss the effect this imposition of liability may have on the ability of the employer to continue to finance the benefits it has promised under its self-insured plan.
In Fischer v. Philadelphia Elec. Co., 994 F.2d 130, 133 (3d Cir.1993), however, we held an employer could be liable under ERISA for misrepresenting to employee-participants of its self-insured retirement plan the fact that changes which could affect the timing of their decision to take early retirement were under serious consideration. Here, I think any actions of the Hospital in a fiduciary capacity are immaterial to any fiduciary duty it may have under § 502(a)(3) of ERISA not to make material misrepresentations to its employee-participants, First, I believe Mrs. Smith was no longer an employee-participant in the Plan when the Hospital’s misrepresentations were made. Secondly, I do not believe she can demonstrate detrimental reliance. Finally, I note my belief that it is necessary to base any duty to avoid misrepresentation a construction of § 502(a)(3) which does impose on an employer a fiduciary duty to its employees. I believe the court's decision here rests on that construction. Otherwise, direct imposition of liability on an employer based upon common law actions for fraud or deceit could raise preemption issues.
. In Hozier, 908 F.2d at 1165 n. 10, we merely noted the possibility of an estoppel in the presence of extraordinary circumstances. In Gridley v. Cleveland Pneumatic Co., 924 F.2d 1310, 1319 (3d Cir.1991), we set forth the requirements of equitable estoppel but concluded that it was there unnecessary to decide whether estoppel was available as a theory for recovery of benefits secured by ERISA because the common law requirement of detrimental reliance was not met. In Rosen, 637 F.2d at 598, we did permit a participant to estop a pension fund from denying benefits despite a plan provision mandating that certain contributions to the plan be made by the employer where the employee was allowed to make the employer's contributions himself. In Holier, we recognized that Rosen "can be classified as one of the 'extraordinary circumstances’ as outlined in [prior ERISA cases limiting the use of estoppel to extraordinary circumstances].” Holier, 908 F.2d at 1165 n. 10 (quoting Rosen, 637 F.2d at 598).
. Generally, premiums for individual plans are substantially higher than those for the individual participants in group plans. See Local 217, Hotel & Restaurant Employees' Union v. MHM, Inc., 976 F.2d 805, 809 (2d Cir.1992) (recognizing group rate is lower than individual rate and this is one of reasons COBRA group continuing coverage was enacted). The conversion requirement is not uncommon in group plans for employees. Of course, if the continuing premiums are beyond the independent means of the worker whose disability has cost him his income from employment, the insurer’s promise to indemnify will be empty words in that worker's ears.
. For some reason the record has not been fully developed on this point. The reader is, however, again reminded that Blue Cross/Blue Shield is not a party to this case.
. I agree with the Court that the district court should, if it determines that Mrs. Smith was still in the employ of the Hospital at the time of the changeover in plans or that the Hospital is es-topped from denying this fact, reconsider its decision that no conversion privilege was available because the Blue Cross/Blue Shield group plan was canceled in favor of another. The district court, on remand, must resolve which version of the provision, as discussed supra at 140-41, applies and what that provision means.