1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-12-1994

Curcio v. John Hancock Mutual Life Ins. Co.

Precedential or Non-Precedential:

Docket 92-2047

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Recommended Citation

"Curcio v. John Hancock Mutual Life Ins. Co." (1994). 1994 Decisions. Paper 111.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/111
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 Nos. 93-7545 and 93-7556 

 ___________ 

 MARITA L. CURCIO; 

 THE ESTATE OF FREDERICK CURCIO, III 

 vs. 

 JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY; 

 CAPITAL HEALTH SYSTEMS 

 John Hancock Mutual Life Insurance Company 

 ("John Hancock"), 

 Appellant in No. 93-7545 

 MARITA L. CURCIO; 

 THE ESTATE OF FREDERICK CURCIO, III 

 vs. 

 JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY; 

 CAPITAL HEALTH SYSTEMS 

 MARITA L. CURCIO, INDIVIDUALLY AND AS EXECUTRIX OF 

THE ESTATE OF FREDERICK CURCIO, III 

 Appellant in No. 73-7556 

 ___________ 

 Appeal from the United States District Court 

 for the Middle District of Pennsylvania 

 (D.C. Civil No. 92-00789) 

 ___________ 

 

Argued 

 March 10, 1994 

 Before: MANSMANN and LEWIS, Circuit Judges and 

 McKELVIE, District Judge.* 

 (Filed August 17, 1994) 

 ___________ 
* Honorable Roderick R. McKelvie of the United States 

District Court for the District of Delaware, sitting by 

designation. 

Michael D. Fishbein, Esquire (ARGUED) 

Levin, Fishbein, Sedran & Berman 

320 Walnut Street 

Philadelphia, PA 19106 

 Counsel for Appellee/Cross Appellant Marita L. Curcio 

James K. Thomas, II, Esquire 

Richard C. Seneca, Esquire (ARGUED) 

Thomas, Thomas & Hafer 

305 North Front Street 

P.O. Box 999 

Harrisburg, PA 17108 

 Counsel for Appellee CAP Health Systems 

Alan R. Boynton, Jr., Esquire (ARGUED) 

McNees, Wallace & Nurick 

100 Pine Street 

P.O. Box 1166 

Harrisburg, PA 17108 

 Counsel for Appellant 

 ___________ 

 OPINION OF THE COURT 

 __________ 

MANSMANN, Circuit Judge. 

 Frederick Curcio, III, M.D., died in an automobile 

accident while employed as a full time physician at Harrisburg 

Hospital, which is owned by Capital Health Systems. Capital 

Health sought to provide to its employees basic life insurance 

coverage and basic accidental death and dismemberment coverage 

through John Hancock Mutual Life Insurance Company. Marita L. 

Curcio, Frederick's widow, collected $200,000 in life insurance 

proceeds and $50,000 from the accidental death coverage. 
Claiming entitlement to an additional $150,000 in accidental 

death benefits because of representations made by Capital Health 

in its plan summary document, she brought an action, individually 

and as executor of Frederick's estate, against Capital Health and 

John Hancock under the Employee Retirement Income Security Act of 

1974, 29 U.S.C. §§ 1001-1461 (1988). The district court granted 

summary judgment in favor of Mrs. Curcio and Capital Health and 

against John Hancock. John Hancock appeals and Mrs. Curcio 

cross-appeals to preserve her rights against Capital Health. We 

hold that John Hancock is not responsible either for Capital 

Health's inaccurate representations made to its employees or for 

any additional recovery under John Hancock's clearly stated 

policy. We further hold that Capital Health is liable under the 

alternative theories of breach of fiduciary duty and equitable 

estoppel. 

I. 

 The historical facts of this case are not in dispute. 

Since October of 1989,1 John Hancock has provided life insurance 

and accidental death and dismemberment insurance for all fulltime Capital Health employees in an amount equal to the 

employee's base annual salary to a maximum of $50,000. John 

 

1. Prior to October, 1989, Capital Health contracted with 

Phoenix and Prudential Insurance Companies for its employee 

insurance program. In the summer of 1989 Capital Health hired 

Coopers & Lybrand to interview various other insurance companies 

in an effort to acquire a new plan. Coopers & Lybrand negotiated 

the agreement with John Hancock on behalf of Capital Health. 
Hancock also offered twenty-one senior employees, who had the 

same basic coverage as the other employees, the opportunity to 

purchase supplemental coverage, for both life and AD&D, up to the 

amount they were currently receiving. Because no one could be 

added to this group of employees, it became known as the frozen 

group. Dr. Curcio was not a member of this group.2

 One year later Capital Health wanted to extend to all 

employees the opportunity to purchase the same supplemental 

coverage from John Hancock as offered to the frozen group. 

Capital Health held group meetings for its employees where it 

introduced the supplemental coverage through an audio-visual 

presentation, explaining that supplemental insurance could be 

purchased in amounts equaling one, two or three times the amount 

of an employee's base annual salary, not to exceed $150,000. 

This coverage amount would be in addition to the coverage amount 

provided by the basic plan. The presentations clearly 

represented to the employees that this option was available "to 

increase your life and AD&D insurances significantly." The 

audiotape, which was accompanied by slides, stated in pertinent 

part: 

 

2. John Hancock asserts that originally it did not intend 

to provide to the frozen group a policy containing additional 

AD&D benefits. Although those additional benefits were never 

negotiated with Capital Health, because John Hancock was 

receiving an additional amount in premiums above that which was 

expected for the life coverage and which seemed to represent an 

AD&D premium, John Hancock agreed to add AD&D to the frozen 

group's coverage. John Hancock issued a new policy indicating 

the change. 
 Finally, let's look at other important 

elections you have available under choice 

plus. 

 Capital Health provides free group life 

and accidental death and dismemberment -- or 

AD&D -- insurance for all full-time and parttime employees scheduled to work at least 16 

hours a week. Each of the coverages is equal 

to: 

 • One Times Basic Average Earnings up 

to a Maximum of $50,000 for fulltime employees and, 

 • One Times Basic Average Earnings up 

to a Maximum of $25,000 for parttime employees. 

 You also have an opportunity of purchasing 

additional coverages up to three times basic 

average earnings subject to the maximums 

shown on the chart. (Chart on Screen) 

 The contributions you pay for these coverages 

are at low group rates and depend on your 

amount of coverage and your age. An 

important point: unless you take advantage 

of increasing your insurance coverages now, 

you will only be able to "step up" one 

additional level of coverage per year -- 

until you reach your coverage limit -- if you 

want higher levels of coverage in the future. 

In short, this is a one time offer. You can 

either take advantage of the current 

enrollment period to increase your life and 

AD&D insurances significantly or wait until 

future years to increase coverages on a 

slower year to year basis. (Emphasis added.) 

 

 The dispute is whether the supplemental insurance 

offered to all the employees was the same as the coverage offered 

to the frozen group; specifically, did the supplemental coverage 

include life and AD&D? John Hancock claims the supplemental 

coverage only included life insurance, and it points to the 
differing language in each group's policies to support its 

position.3

 Dr. Curcio's salary made him eligible to purchase the 

maximum amount of coverage, which he did. Capital Health charged 

him bi-weekly premiums of $6.00 for this coverage. The record 

indicates, and the district court so found, that Dr. Curcio 

believed his coverage to include both life and AD&D insurance. 

On August 5, 1991, Dr. Curcio died in an automobile accident. 

 A representative from Capital Health, James Henry, made 

an inquiry by telephone to John Hancock regarding a determination 

of benefits due Mrs. Curcio. Then Assistant Sales Manager, 

Richard Lintner, responded that Dr. Curcio had $400,000 in 

coverage ($50,000 basic life, $50,000 basic AD&D, $150,000 

supplemental life, and $150,000 supplemental AD&D). 

 Shortly thereafter John Hancock recanted its oral 

representation of coverage and expressed, before a claim was 

filed, that its preliminary determination was incorrect and that 

Dr. Curcio had $150,000 in supplemental life coverage only, 

giving his beneficiary a total benefits package of $250,000. 

John Hancock claimed that employees in Dr. Curcio's position 

never had the opportunity to purchase supplemental AD&D coverage, 

 

3. Just as in the frozen group's situation a year earlier, 

John Hancock issued new policies to reflect the change in 

coverage. However, unlike the frozen group's premiums, John 

Hancock argues that the premiums for the general group's new 

policy only included payments for life coverage. 
and even if they did, Dr. Curcio only paid premiums for $150,000 

in supplemental life coverage.4 

 Subsequently, Mrs. Curcio filed a claim with John 

Hancock for proceeds due. John Hancock tendered a check to her 

in the amount of $250,000. Mrs. Curcio initiated this lawsuit to 

recover an additional $150,000 in supplemental AD&D benefits. 

II. 

 The district court concluded that the terms of the 

policy were ambiguous and, applying the doctrine of contra

proferentum, granted summary judgment against John Hancock in 

favor of Mrs. Curcio.5 John Hancock appeals. 

 The district court also held that Capital Health was 

not a proper party under ERISA because it was neither a benefit 

plan nor a fiduciary, which resulted from the district court's 

finding of a lack of discretion over the determination of 

benefits under the plan. Thus the district court granted Capital 

 

4. Initially Capital Health argued to John Hancock that 

additional AD&D benefits were included in the contributory plan 

and encouraged Mrs. Curcio to file suit against John Hancock to 

challenge the determination of benefits under the policy. 

Capital Health urged John Hancock to honor the additional AD&D 

amount, but John Hancock refused. Subsequently, Capital Health 

changed its position and now contends that the additional AD&D 

was never included in the policy. 

5. This suit was originally filed in the Court of Common 

Pleas of Dauphin County, Pennsylvania. Because Mrs. Curcio's 

claims were governed by ERISA, John Hancock removed the case to 

the United States District Court for the Middle District of 

Pennsylvania pursuant to 28 U.S.C. § 1441. An amended complaint 

was filed on July 16, 1992, asserting theories of relief grounded 

in ERISA. 
Health's motion for summary judgment. Mrs. Curcio appeals this 

order as an alternative theory of recovery. 

 We have jurisdiction pursuant to 28 U.S.C. § 1291, and 

our standard of review is plenary. Fischer v. Philadelphia Elec. 

Co., 994 F.2d 130, 132-33 (3d Cir. 1993). Our task is to 

determine whether, viewing the evidence in the light most 

favorable to the non-moving party, there exists a genuine issue 

of material fact such that a reasonable factfinder could return a 

verdict for that party.6 Id. (quoting Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986)). 

III. 

 We turn first to Mrs. Curcio's claim against John 

Hancock Mutual Life Insurance Company. The parties concur that 

the only basis upon which recovery can be had against John 

Hancock is if there is coverage under the policy that it issued. 

The district court, utilizing the doctrine of contra proferentum, 

found coverage to exist. This is a question of law subject to 

plenary review on appeal. Taylor v. Continental Group, 933 F.2d 

1227, 1232 (3d Cir. 1991). 

 The contra proferentum doctrine holds that ambiguities 

in an insurance policy are to be resolved in favor of the 

insured. Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1257 (3d 

 

6. In presenting their motions for summary judgment, the 

parties stipulated that the district court adjudicate all claims 

without trial solely on the basis of the written record, 

including the resolution of any material issues of fact. 
Cir. 1993). We look to the number of reasonable interpretations 

a given contract, provision, or term may receive in determining 

ambiguity. Taylor, 933 F.2d at 1232. If we find but one 

reasonable interpretation, then a fortiori there can be no 

ambiguity. However, if the language is susceptible to more than 

one reasonable interpretation, then it will be found to be 

ambiguous. Stendardo v. Federal Nat'l Mortgage Ass'n, 991 F.2d 

1089, 1094 (3d Cir. 1993). 

 Here the district court held: 

 In this case, we conclude that reasonable 

persons reading the plan descriptions for the 

basic life insurance and the supplemental 

life insurance could fairly come to either of 

the following conclusions: (1) that AD&D 

coverage is inherent in the phrase "life 

insurance" such that any supplemental life 

insurance purchased would automatically 

include AD&D coverage, or (2) that because 

AD&D is specifically referred to in the basic 

plan and not in the supplemental, it was 

simply not a part of the latter. While our 

determination that the language is ambiguous 

hinges on an objective reading of the 

challenged passage, we find support for this 

result in the confusion among the defendants 

in the days and weeks following Dr. Curcio's 

death. 

Slip op. at 11-12. We disagree with the district court's 

analysis in two respects. First, our review of the policy does 

not reveal an ambiguity. Capital Health seems to have created 

the ambiguity. Second, the term "life insurance," when given its 

fundamental and universally accepted meaning, does not include 

AD&D coverage. Although our role here is to determine whether 

there are two possible meanings, were we given the task of 
interpreting the term, we would hold that the certainty and 

predictability that a literal construction of the term "life 

insurance" would provide would better serve the purposes of 

ERISA. Cf. Rolhman v. Hawkeye-Security Insurance Co., 502 N.W.2d 

310 (Mich 1993)(giving a literal construction to the term 

"occupant" in interpreting the Michigan no-fault act). 

 The record reveals that the original policy applicable 

to Dr. Curcio clearly differentiated between life insurance and 

AD&D insurance. In the table of contents under the heading of 

"COVERAGES," there were two entries. Each was discussed 

separately, the policy set forth two different filing 

instructions for each respective claim, each had different 

termination periods, and the payment of benefits to beneficiaries 

was provided for separately. Most importantly, life insurance 

benefits were to be paid upon proof of death; however, AD&D 

benefits were payable in the event of an accident resulting in an 

enumerated injury or death. The two are mutually exclusive, that 

is, one could exist without the other. Suggesting that life 

insurance would include AD&D coverage is inconsistent with their 

basic definitions. 

 When Capital Health asked that supplemental insurance 

be made available to all employees, the policy was amended 

accordingly. First, an amendment which described the schedule 

for the supplemental coverage was added to the original policy, 

which discussed life insurance only. Subsequently a new policy 

was issued. This policy, similar to the original, had separate 

entries for life and AD&D coverage. In setting forth the basic 
coverage in the master schedule, the new policy mimicked the 

original. It stated in pertinent part: 

 BASIC INSURANCE (Non-Contributory)* 

 Life, Accidental Death and Dismemberment Insurance 

Class Life AD&D (Full Amount) 

 The very next page described the newly offered 

supplemental life coverage. Unlike the previous page, it stated: 

 SUPPLEMENTAL INSURANCE (Contributory) 

 Life Insurance 

The headings on these pages make clear that the supplemental 

insurance included only life coverage, not AD&D. Similar to the 

original policy, the new policy also distinguished between life 

and AD&D coverage. It contained two different entries in the 

table of contents, life and AD&D were discussed separately in the 

text, the policy set forth two different filing instructions for 

each respective claim, each had different termination periods, 

and the payment of benefits to beneficiaries was provided 

separately. Additionally, the new policy clearly set forth a 90 

day waiting period for basic life and AD&D coverage, but required 

30 days for the supplemental life insurance. The supplemental 

life coverage terminated at age 70, contrary to AD&D and basic 

life. 

 The foregoing policies and amendments were provided to 

Capital Health, but there is no evidence that Capital Health ever 

distributed them to its employees. In fact, it appears that when 

John Hancock offered to Capital Health copies of the policies and 
their amendments to give to the employees, Capital Health 

declined. Rather, Capital Health chose to make and distribute 

its own summaries. As we discuss infra, it was Capital Health's 

summary of the new policy that created the confusion. 

 Therefore, we conclude that John Hancock's insurance 

policies were not ambiguous. Further, the district court's 

suggested interpretation of the term life insurance is overly 

broad; life insurance does not inherently include AD&D insurance. 

The district court erred in the initial steps of its analysis. 

Thus, we will reverse the district court's order granting Mrs. 

Curcio's motion for summary judgment with respect to John Hancock 

and enter an order granting judgment in its favor.7

 We turn now to the issues involving Capital Health. 

IV. 

 ERISA provides: 

 [A] person is a fiduciary with respect to a 

plan to the extent (i) he exercises any 

discretionary authority or discretionary 

control respecting management of such plan or 

exercises any authority or control respecting 

management or disposition of its assets, (ii) 

he renders investment advice for a fee or 

other compensation, direct or indirect, with 

respect to any moneys or other property of 

such plan, or has any authority or 

responsibility to do so, or (iii) he has any 

 

7. Because we find that the insurance policy is not 

ambiguous, we need not address the parties' arguments regarding 

the district court's use of the contra proferentum doctrine. We 

note in passing that any question about the use of this doctrine 

in ERISA cases that was left open in Taylor v. Continental Group, 

933 F.2d 1227 (3d Cir. 1991) was answered in our decision in 

Heasley v. Belden & Blake Corp., 2 F.3d 1249 (3d Cir. 1993). 
discretionary authority or discretionary 

responsibility in the administration of such 

plan. 

29 U.S.C. § 1002(21)(A).8 

 Capital Health argues that ERISA only permits suits to 

recover benefits against the plan as an entity and against the 

fiduciary of the plan, and because Capital Health is neither of 

these, it is not a proper party under ERISA. Gelardi v. Pertec 

Computer Corp., 761 F.2d 1323, 1324-25 (9th Cir. 1985) (citing §§ 

1132(d), 1109(a) and 1105). The district court agreed with 

Capital Health that it is neither a "plan" nor a fiduciary. We 

believe it self evident that Capital Health is not a "plan;" 

however, we take issue with the failure to find fiduciary status. 

 We agree with the district court that the linchpin of 

fiduciary status under ERISA is discretion. Here the district 

court found that "John Hancock's refusal to follow Capital 

Health's directive indicates that the employer wielded no 

discretionary authority over the granting of benefits." Slip op. 

at 11. Thus it concluded that Capital Health could not be held 

liable for Curcio's benefits. It appears the district court 

relied on the second phrase of subsection (i) above, "authority 

 

8. It is without doubt that the insurance policy at issue 

here is part of an employee benefit plan within the meaning of 

ERISA. 29 U.S.C. § 1002(1) and (3). In order to comply with 

ERISA requirements, 29 U.S.C. § 1022, Capital Health published to 

its employees a Statement of ERISA Rights and a list of General 

Provisions and Information. Further, John Hancock asserted in 

paragraph four of its motion to remove this case to federal court 

that the life insurance policy is an employee welfare plan 

subject to the provisions of ERISA. 
or control respecting management or disposition of its assets," 

as the basis for its decision. 29 U.S.C. § 1002(21)(A)(i). 

Unfortunately, the court failed to examine how the first phrase 

of subsection (i), respecting the management of the plan, or 

subsection (iii), the plan's administration, might affect Capital 

Health's fiduciary status.9 This is where we continue the 

analysis. 

 Our task, simply stated, is to resolve whether Capital 

Health maintained any authority or control over the management of 

the plan's assets, management of the plan in general, or 

maintained any responsibility over the administration of the 

plan. If we find such to be the case, we have a fortiori found 

Capital Health to be a fiduciary. We start from the standpoint 

that we have previously held that ERISA broadly defines a 

fiduciary. Smith v. Hartford Ins. Group, 6 F.3d 131, 141 n.13 

(3d Cir 1993). See also H. Stennis Little, Jr. and Larry T. 

Thrailkill, Fiduciaries Under ERISA: A Narrow Path to Tread, 30 

Vand. L. Rev. 1, 4 (1977). 

 In Smith we found a hospital that gave assurances of 

continued coverage after changing health plans to be a fiduciary 

responsible for its employees' loss in benefits when the new plan 

failed to cover a disabled employee. We noted that fiduciary 

status under ERISA is broadly defined and held that the 

circumstances of that case dictated our finding that the hospital 

 

9. Subsection (ii) does not seem to apply nor does Mrs. 

Curcio so argue. 
was a fiduciary. Smith, 6 F.3d at 141 n.3. The particular 

circumstances of Smith are similar to our facts here. After the 

hospital decided to replace its Blue Cross/Blue Shield policy 

with a self-funded insurance plan and because the employees had 

the option to convert to an individual Blue Cross/Blue Shield 

policy instead of enrolling in the new plan, the hospital's 

personnel director conducted seminars to help employees make 

their choices. Id. at 135-36. On the basis of these actions, we 

found the hospital to have fiduciary status. 

 Similarly, in Genter v ACME Scale & Supply Co., 776 

F.2d 1180 (3d Cir. 1985), we held that ACME Scale & Supply met 

the ERISA definition of fiduciary as an employer-administrator of 

the plan at issue. Id. at 1184. We found that the employer 

exercised discretionary authority and control in managing the 

plan by notifying certain employees when they were eligible for 

an increase in life insurance coverage not explained in the terms 

of the plan. Id. at 1184-85. The employer's failure to notify 

all employees generally was deemed a breach of the fiduciary duty 

ERISA imposes. Id. at 1185-86. See also Fischer v. Philadelphia 

Elec. Co., 994 F.2d 130, 133 (3d. Cir. 1993) (finding employer to 

have fiduciary status solely on the basis of its role as plan 

administrator under ERISA); Hozier v. Midwest Fasteners, Inc., 

908 F.2d 1155, 1158 (3d Cir. 1990) (holding that when employers 

serve as plan administrators, they assume the role of fiduciary 

under ERISA).10

 

10. We have previously summarized the law in this area as 

follows: 
 ERISA makes clear that a fiduciary is one that 

maintains discretionary authority or discretionary responsibility 

in the administration of the plan.11 ERISA defines 

"administrator" as "the person specifically so designated by the 

terms of the instrument under which the plan is operated." § 

1002(16)(A)(i) (other definitions are stated, but are not 

applicable here). Capital Health, in its employee benefits 

booklet, labels itself as the plan administrator.12 It seems 

(..continued) 

 [W]here an administrator of a plan decides 

matters required in plan administration or 

involving obligations imposed upon the 

administrator by the plan, the fiduciary 

duties imposed by ERISA attach. Where, 

however, employers conduct businesses and 

make business decisions not regulated by 

ERISA, no fiduciary duties apply. And, when 

employers wear "two hats" as employers and as 

administrators ". . . they assume fiduciary 

status `only when and to the extent' that 

they function in their capacity as plan 

administrators, not when they conduct 

business that is not regulated by ERISA." 

Payonk v. HMW Industries, Inc., 883 F.2d 221, 225 (3d Cir. 1989) 

(citations omitted). 

11. Section 1102(a)(1) states that "[e]very employee 

benefit plan . . . shall provide for one or more named 

fiduciaries who jointly or severally shall have authority to 

control and manage the operation and administration of the plan." 

Section 1102(a)(2) further states that "the term 'named 

fiduciary' means a fiduciary who is named in the plan instrument, 

or who, pursuant to a procedure specified in the plan, is 

identified as a fiduciary." We have been unable to locate, nor 

do the parties point out, the "named fiduciary" of the Capital 

Health plan. 

12. Capital Health calls to our attention a case from the 

Ninth Circuit that it claims supports its position that it is not 

a fiduciary. Gelardi v. Pertec Computer Corp., 761 F.2d 1323 

(9th Cir. 1985). Gelardi is easily distinguishable for, unlike 
obvious to us that a plan administrator has responsibility in the 

administration of the plan. H. Stennis Little, Jr. and Larry T. 

Thrailkill, Fiduciaries Under ERISA: A Narrow Path to Tread, 30 

Vand. L. Rev. 1, 6 (1977). 

 Here Capital Health announced the new plan to its 

employees through literature and meetings. Indeed, at the plan's 

inception John Hancock offered to print booklet certificates for 

each and every employee, but Capital declined. Capital Health 

chose to print and distribute its own booklet certificates 

describing the plan and each of the plan's amendments. The 

general information section of the Choice Plus Booklet 

distributed by Capital Health stated that the plan would be 

administered through the Employee Relations Department of Capital 

Health Systems. It further stated that Capital Health could 

modify or amend the plan at any time at its sole discretion, and 

that Capital Health could terminate the plan at any time. 

Finally, the information provided that a covered person's 

benefits may not be assigned, except by the consent of Capital 

(..continued) 

our case, the employer relinquished its role as plan 

administrator by hiring an outside corporation to administer the 

plan; and as a result, the Ninth Circuit held that the employer 

was not "a fiduciary because it retained no discretionary control 

over the disposition of claims." Id. at 1325. Surprisingly, the 

court also held that the retained administrator was not a 

fiduciary because it did not "exercise fiduciary responsibilities 

in the consideration of claims. [It] perform[ed] only 

administrative functions, processing claims within a framework of 

policies, rules, and procedures established by others." Id. at 

1325. We emphasize that the Ninth Circuit, similar to the 

district court here, failed to analyze the definitional section 

of fiduciary pertaining to the plan's administration. § 

1002(21)(A)(iii). 
Health. The Supreme Court has held that "one is a fiduciary to 

the extent he exercises any discretionary authority or control." 

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989). 

 We conclude that Capital Health maintained sufficient 

discretionary authority and responsibility in the administration 

of the plan so as to satisfy the statutory definition of a 

fiduciary, § 1002(21)(A)(iii), thus making it a proper party 

under ERISA.13 Therefore, we need not address Curcio's 

contention that ERISA permits suits against parties other than 

plans and fiduciaries.14nn We caution in passing, as we have 

 

13. Our holding is with respect to § 1002(21)(A)(iii) only. 

As stated above, the first phrase of subsection (i), authority or 

control respecting the management of the plan, may also lend 

support; however, it is unnecessary for our conclusion here, and 

we reserve for another day the task of defining its parameters. 

14. ERISA affords the beneficiary of an employee benefit 

plan opportunity the ability to bring a civil suit to recover 

benefits due. It provides in part: 

 (a) Persons empowered to bring a civil action 

 A civil action may be brought-- 

 (1) by a participant or beneficiary . . . 

 (B) to recover benefits due to him under the 

terms of his plan, to enforce his rights 

under the terms of the plan, or to clarify 

his rights to future benefits under the terms 

of the plan; 

 (2) by the Secretary, or by a participant, 

beneficiary or fiduciary for appropriate 

relief under section 1109 of this title; 

 (3) by a participant, beneficiary, or 

fiduciary . . . (B) to obtain other 

appropriate equitable relief . . . (ii) to 

enforce any provisions of this subchapter or 

the terms of the plan. 
before, that the district courts should not easily fashion 

additional ERISA claims and parties outside congressional intent 

under the guise of federal common law. Plucinski v. I.A.M. Nat'l 

Pension Fund, 875 F.2d 1052, 1056 (3d Cir. 1989). 

V. 

 We have held that an employer can be liable under ERISA 

in its fiduciary capacity for making affirmative 

misrepresentations on breach of fiduciary duty and equitable 

estoppel theories. Fischer v. Philadelphia Elec. Co., 994 F.2d 

130, 133-35 (3d Cir. 1993). See also Haberern v. Kaupp Vascular 

Surgeons Ltd. Defined Benefit Pension Plan, No. 93-1892, slip op. 

(..continued) 

 * * * 

 (d) Status of employee benefit plan as entity 

 (2) Any money judgment under this 

subchapter against an employee 

benefit plan shall be enforceable 

only against the plan as an entity 

and shall not be enforceable 

against any other person unless 

liability against such person is 

established in his individual 

capacity under this subchapter. 

29 U.S.C. § 1132 (emphasis added). Mrs. Curcio further contends 

that the "any other person" phrase of § 1132(d)(2) authorizes a 

suit against any person who undertake 

ys a promissory obligation to provide benefits pursuant to the 

terms of an ERISA regulated plan. Although she argues that such 

is plainly the rule in the Third Circuit, the cases she cites 

clearly do not support this theory. Heasley v. Belden and Blake 

Corp., 2 F.3d 1249, 1258 n.10 (3d Cir. 1993); Ulmer v. Harsco 

Corp., 884 F.2d 98, 102 n.1 (3d Cir. 1989); Anthius v. Colt 

Industries Operating Corp., 789 F.2d 207, 212-13 (3d Cir. 1986). 
at 23 (3d Cir. 1994); Smith v. Hartford Ins. Group, 6 F.3d 131, 

141 n.13 (3d Cir. 1993). Here Mrs. Curcio primarily presents an 

equitable estoppel claim, which is authorized under ERISA 

pursuant to § 1132(a)(3)(B) set forth above. Bixler v. Central 

Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1298 (3d Cir. 

1993) (holding that § 1132(a)(3)(B) authorizes the award of 

appropriate equitable relief to a beneficiary for violations of 

ERISA).15 She alternatively argues that Capital Health is 

subject to liability for breach of its fiduciary duty pursuant to 

§ 1109.16

 

15. Notably, we have recently held that damages are not 

recoverable under § 1132(a)(1)(B). Haberern v. Kaupp Vascular 

Surgeons Ltd. Defined Benefit Pension Plan, No. 93-1892, slip op. 

at 24. Here, Mrs. Curcio relies on § 1132(a)(3)(B). 

16. (A) Any person who is a fiduciary with 

respect to a plan who breaches any of the 

responsibilities, obligations, or duties 

imposed upon fiduciaries by this subchapter 

shall be personally liable to make good to 

such plan any losses to the plan resulting 

from each such breach, and to restore to such 

plan any profits of such fiduciary which have 

been made through use of assets of the plan 

by the fiduciary, and shall be subject to 

such other equitable or remedial relief as 

the court may deem appropriate, including 

removal of such fiduciary. A fiduciary may 

also be removed for a violation of section 

1111 of this title. 

29 U.S.C. § 1109. 

 Mrs. Curcio argues that Capital Health need not be a 

fiduciary to be found liable under an equitable estoppel theory 

under ERISA. Because we find Capital Health to be a fiduciary, 

we need not reach this issue. Cf. Smith v. Hartford Ins. Group 6 

F.3d 131, 141 n.13 (3d Cir. 1993) (intimating that fiduciary 

status is required to be liable on an equitable estoppel claim 

under ERISA). 
 We turn first to Mrs. Curcio's primary argument that 

Capital Health's representations made in describing its new plan 

to its employees give rise to an equitable estoppel claim under 

ERISA. To succeed under this theory of relief, an ERISA 

plaintiff must establish (1) a material representation, (2) 

reasonable and detrimental reliance upon the representation, and 

(3) extraordinary circumstances. Smith v. Hartford Ins. Group, 6 

F.3d 131, 137 (3d Cir. 1993) (citing Gridley v. Cleveland 

Pneumatic Co., 924 F.2d 1310, 1319 (3d Cir. 1991)). The district 

court did not address Mrs. Curcio's estoppel claim, presumably 

because it found Capital Health to be an improper party under 

ERISA. The determination of an equitable estoppel claim is a 

mixed question of law and fact. Fischer, 994 F.2d at 135. Here 

the parties do not dispute the facts -- the written record 

contains all the evidence. Indeed, in presenting their motions 

for summary judgment, the parties stipulated that the district 

court adjudicate all claims without trial solely on the basis of 

the written record, including the resolution of any material 

issues of fact. Having found Capital Health to be a proper 

party, we now turn to her equitable theory.17

 

17. The equitable theory of relief under ERISA is not to be 

construed as conflicting with our precedent precluding oral or 

informal amendments to ERISA benefit plans. Confer v. Custom 

Engineering Co., 952 F.2d 41, 43 (3d Cir. 1991); Frank v. Colt 

Industries, Inc., 910 F.2d 90, 98 (3d Cir. 1990)' Hozier v. 

Midwest Fasteners, Inc., 908 F.2d 1155, 1163-64 (3d Cir. 1990). 

Cf. Haberern v. Kaupp Vascular Surgeons Ltd. Defined Benefit 

Pension Plan, No. 93-1892 n.6 (3d Cir. 1994). Here, Capital 

Health not only made oral representations, but also distributed 

written material describing the coverage. 
A. 

 First, Mrs. Curcio must show that Capital Health made 

material representations. Capital Health's representations 

regarding supplemental life and supplemental AD&D insurance began 

with an audio-visual presentation that Capital Health made in an 

effort to solicit its employees to enroll in its new insurance 

program entitled "New Choice Plus Flexible Benefits Plan." The 

audiotape, which was accompanied by slides, stated in pertinent 

part: 

 In short, this is a one time offer. You can 

either take advantage of the current 

enrollment period to increase your life and 

AD&D insurances significantly or wait until 

future years to increase coverages on a 

slower year to year basis. (Emphasis added.) 

 This was not the only time Capital Health discussed 

life and AD&D insurance together. In the summary plan 

description that Capital Health furnished to its employees for 

the original coverage, the section describing the amounts of 

insurance coverage discussed life and AD&D as separate coverages. 

Nonetheless, in stating the amount of coverage, the summary plan 

document stated that the AD&D coverage would be "[a]n amount 

equal to your Term Life Insurance." When Capital Health made 

Choice Plus available, the plan that provided supplemental life 

and AD&D coverages, rather than provide a formal amendment to the 

summary plan description, it furnished a pamphlet with a section 

entitled "Group Life & AD&D Insurance Coverages." Cf. Gridley v. 

Cleveland Pneumatic Co., 924 F.2d 1310 (3d Cir. 1991) (overview 
brochure did not meet ERISA requirements for supplemental summary 

plan description). This section begins: 

 The Capital Health System provides all 

employees scheduled to work at least 16 hours 

a week with Basic Group Life Insurance and 

Accidental Death and Dismemberment (AD&D) 

Insurance at no cost. 

 With Choice Plus you also have the 

opportunity to purchase additional amounts, 

up to three times your Base Annual Earnings, 

at low group rates. 

Finally, this section of the pamphlet concludes: 

 This pamphlet highlights the Group Life 

Insurance and Accidental Death and 

Dismemberment Insurance coverages available 

to you. For more detailed information on 

your plans, you should refer to your Summary 

Plan Descriptions covering them. If 

questions arise, the Legal Plan Documents 

will govern in all cases. 

 Although the foregoing is a general summary of the 

coverages discussed in this section of the pamphlet, coupling 

this information, which describes the coverages as separate but 

related, with the other information furnished to the employees, 

it was reasonable for Dr. Curcio to conclude that both life and 

AD&D insurance would continue to be made available in equal 

amounts, that is, in supplemental form. Cf. 29 U.S.C. § 

1024(b)(1)(A) (requires that material modifications be written in 

a manner calculated to be understood by the average plan 

participant). Genter v. Acme Scale & Supply Co., 776 F.2d 1180, 

1185 (3d Cir. 1985) (holding that a "summary plan description 

must not mislead, misinform, or fail to inform participants and 
beneficiaries of the Plan"). See also Bower v. Bunker Hill Co., 

725 F.2d 1221, 1224-25 (9th Cir. 1984)(misleading summary plan 

description coupled with management misrepresentations precluded 

summary judgment for employer). 

 Nevertheless, the question is whether these 

representations are material. We have held that any provision of 

a plan subject to ERISA that establishes a benefit is a material 

term of the plan. Baker v. Lukens Steel Co., 793 F.2d 509, 512 

(3d Cir. 1986). Here Capital Health was actually representing 

that the plan was offering a new benefit; thus, we find that the 

representations Capital Health made were "material 

representations." See also Fischer v. Philadelphia Elec. Co., 

994 F.2d 130, 135 (3d. Cir. 1993) ("[A] misrepresentation is 

material if there is a substantial likelihood that it would 

mislead a reasonable employee in making an adequately informed 

decision . . . ."). 

B. 

 Second Mrs. Curcio must demonstrate reasonable and 

detrimental reliance upon the representations Capital Health 

made. This factor, which is generally referred to as reliance, 

has within it two subfactors: reasonableness and injury. Smith, 

6 F.3d at 137.18 Mrs. Curcio testified in a sworn statement that 

 

18. But see Edwards v. State Farm Mut. Auto. Ins. Co., 851 

F.2d 134, 137 (6th Cir. 1988)(employee benefit plan claimant who 

had been misled by summary plan description and reassuring letter 

from management, need not show detrimental reliance). Because it 

is inconsistent with our precedents, we have previously declined 

to follow Edwards. Gridley v. Cleveland Pneumatic Co., 924 F.2d 

1310, 1319 n.8 (3d Cir. 1991). 
she and her husband discussed the options available under the 

Choice Plus program, "including increasing the death and 

dismemberment coverage." She testified that they had recently 

bought a home and because the coverage was so reasonably priced, 

they joked about his dying in an accident, her receiving double 

benefits, and paying off the mortgage. Subsequent to this 

discussion, Dr. Curcio filled out an enrollment form electing the 

maximum amount of coverage. This form referred only to "Group 

Life Insurance Options." One month later, Dr. Curcio signed 

another form confirming his elections and the appropriate payroll 

deductions. This second form did not distinguish between life 

and AD&D coverage for either basic or supplemental benefits. 

 In Smith we held that the plaintiff's conclusory 

allegations that the Smiths could have obtained alternative 

coverage, without more, were insufficient to withstand summary 

judgment. Smith, 6 F.3d at 137. Here we find the meeting 

between Dr. and Mrs. Curcio significant. There is more than 

conclusory statements; the Curcios had an actual discussion about 

the protection being afforded through the purchase of additional 

AD&D insurance. For these reasons we conclude that the Curcios 

have suffered an injury in giving up an opportunity to 

accommodate their insurance needs through an independent 

insurance carrier because of their reasonable reliance on Capital 

Health's representations. Cf. McKnight v. Southern Life and 

Health Ins. Co., 758 F.2d 1566, 1570 (11th Cir. 1985) ("It is of 

no effect to publish and distribute a plan summary booklet 

designed to simplify and explain a voluminous and complex 
document, and then proclaim that any inconsistencies will be 

governed by the plan. Unfairness will flow to the employee for 

reasonably relying on the summary booklet.") 

C. 

 Finally, Mrs. Curcio must demonstrate the existence of 

extraordinary circumstances. We have not specifically defined 

this term, rather we rely on caselaw to establish its parameters. 

In Rosen v. Hotel and Restaurant Employees and Bartender's Union, 

637 F.2d 592 (3d Cir. 1981), we found that extraordinary 

circumstances existed when the trustee of a pension fund advised 

Rosen that his pension was in jeopardy due to his employer's 

failure to make payments to the fund, allowed Rosen to write out 

a check for the remainder of the employer's debt, and deposited 

the check. Id. at 598. We held that the trustee was then 

estopped from asserting that Rosen's payment did not entitle him 

to his pension. Id. By contrast, in Gridley v. Cleveland 

Pneumatic Co., 924 F.2d 1310 (3d Cir. 1991), Gridley, while 

continually and totally disabled in the hospital, increased his 

life insurance coverage under a plan that specifically required 

active, full-time status for such an increase. Although the 

employer deducted additional amounts from his salary to cover the 

increase, we found that extraordinary circumstances did not exist 

when the insurance carrier refused the additional amount. Id. at 

1319 (citing Hozier v. Midwest Fasteners Inc., 908 F.2d 1155, 

1165 n. 10 (3d. Cir. 1990). 
 Under the facts of Smith, which are similar to our case 

here, we held that the fact finder could determine that 

extraordinary circumstances were established. Smith, 6 F.3d at 

142. In Smith the hospital repeatedly made written and oral 

assurances that Mrs. Smith had a specific type of coverage. Id. 

Ironically, here we have another hospital misrepresenting the 

type of coverage for which recipients could enroll. Capital 

Health compounded its error by reassuring Mrs. Curcio that she 

was covered in the amount of $400,000 after the accidental death 

of her husband. In the face of such a tragic loss there is a 

certain degree of solace in knowing that financial woes are not 

on the horizon. Although it was not in Capital Health's control, 

John Hancock contributed to the anguish by first confirming the 

coverage Mrs. Curcio expected and then disclaiming that such 

protection would be forthcoming. 

 The roller coaster did not stop there. Capital Health 

supported Mrs. Curcio's claim to the point of encouraging her to 

file suit, even offering to pay her legal fees. It retained 

outside counsel to review the matter and offered his services to 

her without charge. It continually urged John Hancock to honor 

the supplemental AD&D, despite John Hancock's refusal. Somewhere 

along the way Capital Health had a change of heart, for they now 

argue that supplemental AD&D was never offered in the first 

place. 

 These events in our view are demonstrative of 

extraordinary circumstances. Thus, having satisfied the elements 

of her equitable estoppel claim and there being no reason to 
remand for further factual development, we conclude that Mrs. 

Curcio has established Capital Health's liability to her in the 

amount of $150,000.19 Alternatively, we now briefly address Mrs. 

Curcio's argument regarding breach of fiduciary duty. 

VI. 

 In Fischer we held that a plan administrator may not 

materially misrepresent, either negligently or intentionally, 

modifications to an employee pension benefits plan. "Put simply, 

when a plan administrator speaks, it must speak truthfully." 

Fischer, 994 F.2d at 135. See also Bixler v. Central Pa. 

Teamsters Health & Welfare Fund, 12 F.3d 1292, 1300 (3d Cir. 

1993) (discussing fiduciary's duty not to misinform); Kurz v. 

Philadelphia Elec. Co., 994 F.2d 136, 139 (3d Cir. 1993) 

(discussing the holding in Fischer). We further held in Fischer

that material misrepresentations would subject a plan 

administrator to liability for breach of its fiduciary duty. 

Fischer, 994 F.2d at 133-34 (citing Payonk v. HMW Indus., Inc., 

883 F.2d 221 (3d Cir. 1989)). We have just found Capital Health 

responsible for making material misrepresentations for purposes 

 

19. The dissent suggests, inter alia, that we should remand 

to the district court for factfinding on the elements of 

equitable estoppel. We note, however, that the parties do not 

dispute the facts. The parties stipulated that the district 

court adjudicate all claims without trial solely on the basis of 

the written record, including the resolution of any material 

issues of fact. We are of the view that reasonable minds could 

not differ on the establishment of the elements of equitable 

estoppel in this case. Accordingly, it is appropriate for us to 

require the district court to enter judgment. 
of an equitable theory of relief. It is thus a short step to 

conclude that Capital Health breached its fiduciary duty. 

 Our analysis rests on the notion that a fiduciary is 

required to "discharge [its] duties with respect to a plan solely 

in the interest of the participants and beneficiaries." 29 

U.S.C. § 1104(a)(1). See Fischer, 994 F.2d at 133. Clearly 

Capital Health did not do so. Therefore, we hold that Mrs. 

Curcio's alternate argument provides additional support for our 

conclusion that Capital Health is liable to Mrs. Curcio for the 

$150,000 in supplemental AD&D. 

VII. 

 On the basis of the foregoing, we will reverse in part 

and affirm in part the district court's order. We will reverse 

that part of the order which denied John Hancock's motion for 

summary judgment and granted it in favor of Capital Health. We 

will affirm that part of the court's order which granted Mrs. 

Curcio's motion for summary judgment and entered judgment in her 

favor, but we will reverse the judgment entered against John 

Hancock and enter it against Capital Health in the amount of 

$150,000. 
McKELVIE, District Judge, dissenting. 

 I agree that the district court should grant summary 

judgment in favor of John Hancock. However, I believe that this 

court should remand the claims against Capital Health for further 

proceedings. 

 One could summarize the facts in this case as follows. 

Capital promised its employees, including Dr. Curcio, a package 

of benefits. Capital promised to set up a plan, to provide free 

life and AD&D insurance through the plan, and to make available 

the opportunity to purchase supplemental insurance. Capital 

named itself the "Plan Administrator," and took on the 

responsibility of describing the terms of the plan to the 

beneficiaries. Capital negotiated an insurance contract with 

John Hancock. Hancock had no direct contact with the 

beneficiaries. Capital collected payments from the employees, 

added its own contribution, and sent Hancock a lump sum payment 

every month. The plan owns no relevant assets other than its 

contract with Hancock. Dr. Curcio purchased as much life and 

AD&D insurance as was available, and named his wife as 

beneficiary. Mrs. Curcio alleges, and Capital denies, that the 

supplemental insurance Capital promised to make available 

includes an additional $150,000 of AD&D coverage. Regardless of 

what Capital may have promised its employees, Hancock's contract 

with Capital does not obligate Hancock to pay supplemental AD&D 

benefits. 

 Procedural Posture and Standard of Review
 In the district court, the parties filed motions for 

summary judgment. The parties also stipulated that the district 

court could adjudicate all claims based solely on the written 

record without a trial, including the resolution of any material 

issues of fact. The district court found as a matter of law that 

Capital is not liable and Hancock is liable. The district court 

then entered summary judgment in favor of Mrs. Curcio and against 

Hancock, and in favor of Capital. The district court did so 

without resolving the remaining issues of fact. 

 Entry of summary judgment is only appropriate if when 

viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue of material fact such 

that a reasonable factfinder could return a verdict for that 

party. Slip op. at 7-8. This court's review of an order 

granting summary judgment is plenary. Fischer v. Philadelphia 

Elec. Co., 994 F.2d 130, 132 (3d Cir. 1993), cert. denied, 114 

S.Ct. 622 (1993). If genuine issues of material fact remain 

unresolved, they should be resolved by the trier of fact. The 

district court is the trier of fact in this case. An appellate 

court should not act as the factfinder, even where all evidence 

comes from documents. See Fed. R. Civ. P. 52(a) ("Findings of 

fact [by a trial judge], whether based on oral or documentary 

evidence, shall not be set aside unless clearly erroneous . . . 

."). 

 Enforcement of Plan Benefits

 Mrs. Curcio argues that Capital promised to make 

available $150,000 in supplemental AD&D coverage, and that this 
promise is enforceable under the benefits enforcement section of 

ERISA. See 29 U.S.C. § 1132(a)(1)(B) ("A civil action may be 

brought . . . by a participant or beneficiary . . . to recover 

benefits due to him under the terms of his plan, to enforce his 

rights under the terms of the plan, or to clarify his rights to 

future benefits under the terms of the plan . . . ."). Capital 

argues that it did not make such a promise, and that in any event 

its promises are unenforceable because Capital is neither a plan 

nor a fiduciary. The district court, relying on Gelardi, agreed 

with Capital that ERISA permits liability only against plans and 

fiduciaries. See Gelardi v. Pertec Computer Corp., 761 F.2d 

1323, 1324-5 (9th Cir. 1985). 

 I believe that ERISA does permit a person to sue an 

employer to enforce contractual promises made by the employer, 

regardless of whether or not the employer is a plan or a 

fiduciary. See Murphy v. Heppenstall Co., 635 F.2d 233 (3d Cir. 

1980) (enforcing contractual rights against an employer where the 

plan is not a party), cert. denied, 454 U.S. 1142 (1982). None 

of the sections of ERISA cited by the Gelardi court give any 

limitation on who may be sued. See Lee v. Prudential Ins. Co. of 

America, 673 F. Supp. 998, 1003 (N.D.Cal. 1987). Indeed, 29 

U.S.C. § 1132(d) expressly contemplates that a person other than 

a plan may be held liable. One of Congress' primary purposes for 

enacting ERISA is "to protect contractually defined benefits." 

Firestone Tire & Rubber Co. v. Bruch, 489 US 101, 113 (1989). I 

believe that permitting employees to sue their employers for 

allegedly breaking promises relating to a benefits plan is 
neither novel nor contrary to Congress' intent. See Sprague v. 

General Motors Corporation, 768 F. Supp. 605, 612 (E.D.Mich. 

1991). 

 There is a genuine issue of fact regarding whether 

Capital promised to supply the Curcios with $150,000 of AD&D 

coverage. The task of determining the terms of a plan, and 

interpreting those terms, should be left in the first instance to 

the trial court. See Alexander v. Primerica Holdings, Inc., 967 

F.2d 90, 96 (3d Cir. 1992). I would therefore remand the case to 

the district court for further findings of fact. 

 Equitable Estoppel

 I disagree with the majority's decision to grant 

summary judgment against Capital on the equitable estoppel cause 

of action. Mrs. Curcio has not established that there is no 

genuine issue of material fact as to all elements of this claim. 

 An ERISA beneficiary may recover benefits under an 

equitable estoppel theory "upon establishing a material 

representation, reasonable and detrimental reliance upon the 

representation, and extraordinary circumstances." Smith v. 

Hartford Ins. Group, 6 F.3d 131, 137 (3d Cir. 1993); cf.

Restatement, Second, Contracts § 90 (common law doctrine of 

promissory estoppel). Mrs. Curcio testified by affidavit that in 

the fall of 1990 her husband told her that he had seen a video 

tape at work, the video tape described his insurance benefits, 

and it was his understanding that these benefits included extra 

AD&D insurance. The majority finds that the representations made 

on this tape were material, that the Curcios reasonably relied on 
these representations to their detriment, and that extraordinary 

circumstances exist in this case. The district court did not 

make findings on these questions. 

 A trier of fact could find that it would not be 

reasonable for the Curcios to rely on the representations in the 

video presentation. The majority quotes from a pamphlet which 

Capital distributed to its employees. Slip op. at 22-23. A 

section of this pamphlet, titled "GROUP LIFE & AD&D Insurance 

Coverages," contains a subsection titled "An Opportunity to 

Purchase Supplemental Amounts of Insurance Coverages." The first 

sentence of this subsection states, "Through Choice Plus, you can 

purchase additional amounts of Group Life insurance at low group 

rates." There is no mention of any opportunity to purchase 

additional amounts of AD&D. Louise Reich, an employee of 

Capital, testified by affidavit that Dr. Curcio would have 

received a copy of a "Physician Fringe Benefit Summary." The 

Summary states that a physician may purchase "additional 

supplemental life," but does not mention any opportunity to 

purchase additional AD&D. A trier of fact may, or may not, find 

it reasonable to rely on one's memory of a taped presentation 

which may be in conflict with written materials. 

 To establish the elements of detrimental reliance, a 

plaintiff must show that the defendant's representations induced 

action or forbearance, and that the plaintiff was harmed by this 

action or forbearance. Restatement, Second, Contracts § 90; see 

also Gridley v. Cleveland Pneumatic Co., 924 F.2d 1310, 1319 (3d 

Cir. 1991), cert. denied, 111 S.Ct. 2856 (1991). Mrs. Curcio has 
failed to present any evidence of detrimental reliance. The 

majority, finding that the Curcios did detrimentally rely on 

Capital's representations, seems to employ the following 

reasoning: Mrs. Curcio testified that she and her husband 

believed they had the opportunity to purchase supplemental AD&D 

insurance through Capital's benefits program. Therefore, they 

had the opportunity to purchase additional insurance through an 

independent insurance carrier. Therefore, they would have 

purchased additional AD&D coverage if only they had known that 

the death benefits provided by Hancock totalled $250,000, and not 

$400,000. See slip op. at 24-26. 

 As in Smith, there is no evidence that the Curcios 

could have obtained AD&D coverage from an independent insurance 

carrier. Cf. Smith, 6 F.3d at 137 ("the Smiths' conclusory 

allegations that they could have obtained alternative coverage, 

without more, were insufficient to withstand summary judgment"). 

Furthermore, there is no evidence that the Curcios had any 

intention of seeking insurance from an independent carrier. Mrs. 

Curcio has not proven that representations in the video tape 

caused detrimental reliance; there is no evidence that the 

representations induced any act or forbearance. 

 The majority concludes that extraordinary circumstances 

exist in this case, in part because it finds that the 

inconsistent positions taken by the defendants after Dr. Curcio's 

death forced Mrs. Curcio to embark on a roller coaster ride of 

anguish. Slip op. at 26-27. Several aspects of this portion of 

the majority's opinion are troubling. First, there seems to be 
no standard for determining what makes an event "extraordinary," 

nor does the majority attempt to define a standard. It appears 

that when courts first recognized equitable estoppel as a cause 

of action in ERISA cases, the element of "extraordinary 

circumstances" was added in order to protect the actuarial 

soundness of pension funds. See Rosen v. Hotel and Restaurant 

Emp., Etc., 637 F.2d 592, 598 (3d Cir. 1981), cert. denied, 454 

U.S. 898 (1981); Phillips v. Kennedy, 542 F.2d 52, 55 n. 8 (8th 

Cir. 1976). In a case where a fund is a defendant, a court could 

at least balance the desire to make the plaintiff whole against 

the need to ensure that the fund had sufficient assets to satisfy 

its obligation to future claimants. Here, where no fund is 

involved, the nebulous term "extraordinary" loses what definition 

it had, as there is no longer any stated purpose for the 

existence of the element. 

 Second, the case for finding extraordinary 

circumstances seems rather weak. In support of its conclusion 

that extraordinary circumstances exist, the majority makes the 

following arguments: (1) Capital misrepresented the Curcio's 

insurance coverage; (2) Capital repeated that mistake after Dr. 

Curcio died; (3) Hancock made the same mistake after Dr. Curcio 

died; (4) these mistakes caused Mrs. Curcio to experience 

anguish; and (5) for a while, Capital attempted to help Mrs. 

Curcio recover the disputed $150,000 from Hancock. See slip op.

at 26-27. As every plaintiff in an estoppel case must prove 

detrimental reliance on a material representation, the fact that 

Capital made a misrepresentation could not possibly be an 
extraordinary event. The fact that Capital repeated its mistake 

after Dr. Curcio died may be unfortunate, but it is beyond 

dispute that at that point it was too late to make other 

insurance arrangements. There is no evidence in the record that 

Mrs. Curcio suffered anguish, or any other harm, from the 

mistakes made after Dr. Curcio's death. It seems strange to 

penalize Capital for mistakes made by Hancock, and even stranger 

to penalize Capital for attempting to help Mrs. Curcio recover 

the benefits she claimed. 

 Third, the existence of extraordinary circumstances 

should be determined by the trier of fact. See Smith, 6 F.3d at 

142. I do not think that the circumstances identified by the 

majority are so extreme in this case as to warrant this court 

finding that extraordinary circumstances exist. 

 Finally, even if Mrs. Curcio could prove all elements 

of her estoppel claim, the recovery may be less than $150,000. 

Full enforcement of a promise is often appropriate in an estoppel 

case. However, depending on the facts of the case, it may be 

appropriate to limit the recovery. See Restatement, Second, 

Contracts § 90 Comment d. Equitable estoppel is an equitable 

doctrine, and is subject to the discretion of the trial court. 

See Bechtel v. Robinson, 886 F.2d 644, 647 (3d Cir. 1989) ("when 

a trial court makes an equitable assessment after the operative 

facts are established, we review that assessment for abuse of 

discretion."); Plucinski v. I.A.M. Nat. Pension Fund, 875 F.2d 

1052, 1053 (3d Cir. 1989) ("because the district court did not 

address the equities . . . we remand for a development of the 
record, and for the district court to exercise its equitable 

discretion"). 

 Misrepresentation

 The majority states, correctly, that "a plan 

administrator may not materially misrepresent, either negligently 

or intentionally, modifications to an employee pension benefits 

plan." Slip op. at 28. The majority then finds that Mrs. Curcio 

established her claim for negligent misrepresentation. The 

majority makes no attempt to show why summary judgment is 

appropriate on the issue of whether or not Capital made its 

representations negligently or intentionally. The trier of fact 

should determine these questions in the first instance. 

 Furthermore, even if Mrs. Curcio does establish all 

elements of this cause of action, it is far from clear that she 

should receive an award of $150,000. The amount of damages for 

negligent misrepresentation by a fiduciary is not necessarily 

measured by the content of the misrepresentation, but by the 

damage caused to the beneficiary or by the profit received by the 

fiduciary as a result of the misrepresentation. Restatement, 

Second, Trusts § 205 Comment a. There is no evidence that 

Capital gained by its representations. As discussed above, there 

is also no evidence that Mrs. Curcio would have received greater 

death benefits but for Capital's misrepresentations. Therefore, 

it is inappropriate to direct the district court to award 

$150,000 on this claim on a motion for summary judgment. 
 Conclusion

 The trial court granted Mrs. Curcio's motion for 

summary judgment against Hancock, and granted Capital's motion 

for summary judgment against Mrs. Curcio. The majority disagrees 

with both decisions, yet instead of reversing both decisions it 

purports to affirm the judgment in favor of Mrs. Curcio and 

reverse on the question of which defendant loses. I would 

reverse both grants of summary judgment, direct that summary 

judgment be entered in favor of Hancock and against Mrs. Curcio, 

and remand for further proceedings on Mrs. Curcio's claims 

against Capital. 

 I respectfully dissent.