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).
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(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-
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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).
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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.
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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
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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.
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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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