Thibodeaux v. Continental Casualty Insurance

                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                           No. 97-30999
                         Summary Calendar



                      JON STACEY THIBODEAUX,

                                                 Plaintiff-Appellant

                              VERSUS

         CONTINENTAL CASUALTY INSURANCE COMPANY, ET AL,

                                                          Defendants

               WINN DIXIE LOUISIANA INCORPORATED;
                  CONTINENTAL CASUALTY COMPANY,

                                               Defendants-Appellees.



          Appeal from the United States District Court
              For the Western District of Louisiana
                          April 20, 1998


Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.

JOHN M. DUHÉ, JR., Circuit Judge:

     Appellant, a meat cutter at a grocery store, was injured in an
automobile accident. Shortly afterward, he quit work claiming that

pain prevented him from working. For nearly two years, he received

total disability benefits from his employee disability plan. After

several doctors pronounced him able to do light or sedentary work,

the insuror ended his benefit payments.     Appellant unsuccessfully

sought reconsideration by the insurance company.     Appellant then

sued the insuror and his former employer.        The district court

upheld the denial of benefits.   We affirm.
                                    BACKGROUND

      Appellant, Jon Stacey Thibodeaux (“Thibodeaux”), worked with

Winn Dixie as a meat cutter for nearly seven years.               While working

there, Thibodeaux was covered by a long-term disability insurance

plan underwritten by Continental Casualty Company “Continental”.

Thibodeaux injured his back in an automobile accident.                   Claiming

that his pain prevented work, Thibodeaux quit in July.                   He then

submitted his claim for total disability benefits under the plan

and Continental began monthly payments.                 While receiving his

monthly stipend, Thibodeaux saw several doctors.                 They all noted

that Thibodeaux was capable of performing light or sedentary work.

Based   upon   these       evaluations,      Continental    determined       that

Thibodeaux was no longer totally disabled within the plan’s terms

and discontinued payments.            Thibodeaux wrote Continental asking

them to reconsider.        Continental did so and upheld the termination

of benefits.

      Thibodeaux sued Continental and Winn Dixie under the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq,

for   reinstatement    of     his    disability     benefits.      The   parties

stipulated the relevant facts and submitted trial briefs.                     The

district court held that Continental was correct in terminating

Thibodeaux’s benefits.

                                    THE MERITS

A. Standard of Review

      We review a plan administrator’s determination de novo unless

the   plan   gives   the    administrator        discretionary    authority   to


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determine eligibility.            Firestone Tire & Rubber Co. v. Bruch, 489

U.S.       101,   115   (1989).     Here,       the   administrator      had   no   such

discretion.         Additionally, our holding in Pierre v. Connecticut

Gen. Life Ins. Co., 932 F.2d 1552 (5th Cir. 1991) states that we

review factual findings under ERISA plans for abuse of discretion.

When we review factual determinations, we can consider only the

evidence that was available to the administrator; however, in

reviewing interpretations of a plan, we can consider evidence that

was unavailable to the administrator.                   Southern Farm Bureau Life

Ins. Co. v. Moore, 993 F.2d 98, 102 (5th Cir. 1993).

B. Analysis

       The benefit plan defines “total disability” as being “unable

to perform the duties of an occupation for which [one] is or [will]

become       qualified     by     education,          training,     or   experience.”

Thibodeaux asks this Court to ignore the plan’s definition of

“total disability” and apply instead the “Louisiana rule”.                            He

argues that a line of Louisiana decisions has interpreted “total

disability” to allow recovery when the claimant cannot perform the

substantial and material parts of his job in the usual way.                          See

Rodriguez v. American Standard Life & Accident Ins. Co., 553 So.2d

479 (La. Ct. App. 3d Cir. 1989).1

       Generally, ERISA preempts any state law claim that relates to

any employee benefit plan, 29 U.S.C. § 1144(a); however, ERISA’s

savings       clause    exempts    state    laws       regulating    insurance      from

       1
     Appellees dispute whether this is the correct rule; however,
like the district court, we express no opinion as to whether
Appellant’s statement is a correct one.

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preemption.    29 U.S.C. § 1144(b)(2)(A).   Thibodeaux concedes that

the “Louisiana rule” relates to an employee benefit plan, but it is

not preempted because the rule is a state law regulating insurance.

       In Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 48 (1987), the

Supreme Court held that several factors determine whether a law

regulates insurance and is saved from pre-emption.    First, a court

should be guided by a “‘common-sense view’” of the saving clause’s

language.    Second, a court should apply the three factor test used

to determine whether a practice falls under the “business of

insurance” under the McCarran-Ferguson Act, 15 U.S.C. § 1011 et

seq.    That test is :   1) whether the practice has the effect of

transferring or spreading a policyholder’s risk; 2) whether the

practice is an integral part of the policy relationship between the

insurer and the insured; and 3) whether the practice is limited to

entities within the insurance industry.     Id. at 48-9.

       We have never addressed the interpretation of an ERISA plan

term in light of state law and the savings clause. Thus, we look to

other circuits to see how they have applied the test stated above.

In Hammond v. Fidelity & Guaranty Life Ins. Co., 965 F.2d 428 (7th

Cir. 1992), the Seventh Circuit addressed a similar situation.    In

Hammond, a grocery store manager, Hammond, was fired for sexual

harassment.     He killed himself, and his wife brought an ERISA

action claiming that she was still entitled to life insurance

benefits under the employee benefit plan.         The plan extended

coverage one year beyond the employment period, if before death,

the insured had been totally disabled.       “Totally disabled” was


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defined as an inability to perform the chief duties of one’s job or

any   job     for    which    one     was    fitted   by   education,    training     or

experience.         Mrs. Hammond argued that Mr. Hammond’s behavior was

the result of a narcissistic personality disorder which made him

mentally and physically incapable of working at all.                      Id. at 428-

29.        Mrs. Hammond asked the court to refer to Illinois’ laws

governing      insurance       policy       interpretation     in   deciding   whether

Hammond was totally disabled.                The Seventh Circuit declined to do

so    stating       “[w]e    cannot    imagine     any     rational   basis    for   the

proposition that state rules of contract interpretation ‘regulate

insurance’ within the meaning of § 1144(b)(2).”                          Id. at 430.

Further, the court stated that while Illinois’ decisional laws

might effect how benefits were distributed, it did not have the

effect of transferring or spreading a policyholder’s risk.

       Even more important in the court’s eyes was that a contrary

answer would fly in the face of congressional intent.                      Looking at

ERISA’s legislative history, the court determined that Congress

expected a uniformity of decisions under the act.                       Id.; see also

Pilot Life, 481 U.S. at 56.                    The court argued that Congress’

expectation would be defeated were the federal courts to preserve

50 different states laws of insurance policy interpretation. Thus,

the Seventh Circuit held that ERISA preempts state decisional rules

concerning contract interpretation.                   We, like the other circuits

that have addressed this issue2, agree that ERISA preempts state

       2
      For other similar cases, see Sampson v. Mutual Benefit Life
Ins. Co., 863 F.2d 108, 110 (1st Cir. 1988); McMahan v. New England
Mutual Life Ins. Co., 888 F.2d 426, 429-30 (6th Cir. 1989); Brewer

                                               5
law governing insurance policy interpretation.                      Thus, we hold that

the correct definition of “total disability” is as stated in the

plan.     We now turn to whether the decision to end Thibodeaux’s

benefits was an abuse of discretion.

      Thibodeaux argues that Continental’s decision was an abuse of

discretion because the weight of the medical evidence showed that

Thibodeaux could not return to his job as a meat cutter and would

be substantially restricted as to the type of employment to which

he could return.         But, Thibodeaux himself points out, the plan

states that the employee must be physically incapable of performing

a   job   for    which   he    is    qualified      by     education,    training,     or

experience.        Here,      every    doctor,          including   Thibodeaux’s      own

physician, concluded that he was capable of performing light or

sedentary work.          Moreover, a vocational rehabilitation expert

stated that Thibodeaux was qualified to perform many jobs requiring

only light or sedentary work.                In Duhon v. Texaco, Inc., 15 F.3d

1302,     1309   (5th    Cir.       1994),       this    Court   held   that   a   plan

administrator did not abuse his discretion in deciding, without

first     consulting     a    vocational      rehabilitation         expert,   that   an

employee was capable of working.                    Here, the administrator did

consult an expert.           Thus, ending Thibodeaux’s benefits was not an

abuse of discretion.

                                      CONCLUSION

      For the above reasons, we AFFIRM.


v. Lincoln National Life Ins. Co., 921 F.2d 150, 153 (8th Cir.
1990); Envans v. Safeco Life Ins. Co., 916 F.2d 1437, 1440-41 (9th
Cir. 1990).

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