* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstancesset forth in 5THCIR. R. 47.5.4.

 

2 Because Janice McGee was not a named beneficiary on the insurance policy at issue, she

does not appeal.

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________

No. 97-20833

Summary Calendar

________________

GARLAND MCGEE; JANICE MCGEE,

Plaintiffs-Appellants,

versus

SIMPSON PASADENA PAPER COMPANY; 

AMERICAN INTERNATIONAL GROUP INCORPORATED,

Defendants-Appellees.

________________

Appeal from the United States District Court

for the Southern District of Texas

(H-96-CV-2702)

________________

September 2, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges:

PER CURIAM:*

The plaintiff, Garland McGee (McGee), appeals2from the district court’s order granting the

motionsforsummaryjudgmentfiled bythe defendants, SimpsonPasadenaPaperCompany(Simpson)

and American Group International Incorporated (AIG). We affirm.

I.

McGee isthe beneficiary under a personal accident insurance policy taken out byhisson, Paul

McGee (Paul). Paul obtained his insurance coverage from AIG after Simpson’s benefits plan

materials informed him that he was eligible for this coverage.
 

3

 McGee also contends that the district court lacked diversity jurisdiction over this suit. In

light of our holding that the district court possessed federal question jurisdiction, we need not discuss

2

In May 1994, Paul suffered an injury while at work and began receiving workers’

compensation benefits. In April 1995, while still receiving these benefits, Paul died in an automobile

accident. With the aid of a Simpson employee, McGee submitted a claim for the insurance benefits

to AIG. AIG denied the claim, contending that Paul’s coverage had lapsed at the time of the

accident. This decision was affirmed by AIG’s ERISA Appeals Committee and McGee then brought

suit against Simpson and AIG.

In his first amended complaint, McGee demands judgment for “the sum of $150,000.00 in

accordance with the terms of the policy.” According to McGee, the defendants have “acted

arbitrarily and capriciously in their refusal and failure to pay Plaintiffsuch sum.” In addition, McGee

contends that the defendants have acted “arbitrarily and capriciously” by failing to provide him with

a “full and fair review” o f his claim under the policy. After receiving McGee’s complaint, the

defendants removed the suit to federal court on the grounds that McGee’s claim for benefits was

within the preemptive reach of ERISA. 

On defendants’ motions for summary judgment, the district court ruled that McGee’s claim

for benefits under the policy failed because Paul was not insured at the ti me of the accident. The

propriety of this ruling is not before us on appeal. In addition, the district court determined that the

language fromthe complaint, which is quoted above, did not put the defendants on notice that McGee

was seeking damages as a result of the defendants’ failure to notify Paul that his personal accident

insurance coverage was going to expire while he was receiving his workers’ compensation benefits.

Finally, the district court also denied McGee an opportunity to amend his complaint to state explicitly

a claim for damages based on a lack of notice to Paul. 

II. 

On appeal, McGee contendsthat the district court lacked subject matter jurisdiction over the

suit because the benefits plan at issue is not covered by ERISA.3 In addition, McGee asserts that
this argument.

3

even if jurisdiction was proper, the district court erred by construing his complaint as failing to set

forth a claim for liability based on a lack of notice to Paul that his coverage was going to expire.

Finally, McGee claims that even if he failed to plead a claim for damages based on a lack of notice,

the district court abused its discretion in denying his request to amend his complaint.

A.

With respect to McGee’sfirst contention, we note that ifthe Simpson benefits plan is covered

byERISA, then the district court had federalquestion subject matterjurisdiction over McGee’s cause

of action. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987). According to McGee, the

plan is not subject to ERISA because it falls under the Department of Labor’s “safe harbor”

provision. 29 C.F.R. § 2510.3-1(j). Under that regulation, a plan is excluded from ERISA coverage

if, among other things, the “sole functions of the employer . . . with respect to the program are,

without endorsing the program, to permit the insurer to publicize the program to employees . . . , to

collect premiums through payroll deductions . . . and to remit them to the insurer.” Id. (emphasis

added). The only dispute regarding subject matter jurisdiction in this case is whether Simpson

endorsed the plan that included Paul’s accident insurance coverage. If Simpson endorsed this plan,

then the safe harbor provision does not apply and the district court possessed federal question subject

matter jurisdiction over this case.

We have little trouble concluding that Simpson endorsed the benefits plan containing Paul’s

accident insurance. To begin with, the summary plan description (SPD) was furnished to Paul in a

booklet that had Simpson’s name and logo on the cover. This is evidence of endorsement. See

Hansen v. Continental Ins. Co., 940 F.2d 971, 977 (5th Cir. 1991). In addition, the SPD repeatedly

refers to the available benefits as “Simpson Plans” and frequently characterizes Simpson as the

“sponsor” of these plans. These references certainly suggest that Simpson stood behind the plan.

Further, the SPD notifies potential enrolleesthat the “EmployeeRelations officewillassist you and/or

your dependentsin filing . . . personal accident claims.” In fact, a Simpson employee assisted McGee
 

4 Thus, although McGee correctly notesthat he was not required to plead any specific claims

under ERISA following removal, he nevertheless cannot seriously contend that he was excused from

pleading the facts underlying his possible claim regarding the defendants’ failure to provide notice

simply because the appeals process by AIG was limited to the question of coverage. 

 

5

 Likewise, there is no factual support in the pleadings for McGee’s claim, raised for the first

time in his reply brief on appeal, that the defendants breached their fiduciary duties under ERISA.

4

in filing the very claim at issue in this suit. This level of employer involvement in the administration

of a plan also suggests endorsement. Id. Finally, the SPD contains several pages explaining that the

benefit plans are covered by ERISA. This language in the SPD is “strong evidence that [Simpson]

has adopted an ERISA regulated plan.” Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077,

1083 (1st Cir. 1990). Taken together, these facts clearly indicate that Simpson endorsed the plan

provided by AIG and that ERISA governs McGee’s claims. Accordingly, we hold that the district

court possessed subject matter jurisdiction over this case.

B.

We next address McGee’s claim that the district court erred in construing his complaint as

failing to set forth a claim for damages stemming from the defendants’ failure to provide Paul with

notice that his policy was going to expire. Under “notice” pleading, see Fed. R. Civ. P. 8, McGee

was required to set forth facts in his complaint that placed the defendants on notice of his possible

theories of recovery, whether they arose under state law or ERISA (following removal).4 

On appeal, however, McGee fails to identify any language in his complaint putting the

defendants on notice that he sought damagesfor their failure to provide notice to Paul in accordance

with the terms of the plan. This is because there is no such language in the complaint.5 As noted

above, the only facts alleged in the complaint relate to the denial of McGee’sinitial claim for benefits

and the subsequent denial of his appeal. In addition, we note that McGee failed to articulate a lack

of notice claim at a pre-trial conference held by the district court for the purpose of identifying the

nature ofMcGee’s claims and the defensesthereto. The transcript of this conference plainly indicates

that McGee repeatedlyinformed the district court that his claim against the defendants stemmed from
5

the fact that AIG incorrectly concluded that Paul’s coverage had lapsed at the time of the accident.

According to McGee, coverage existed because AIG incorrectly characterized Paul’s period of

occupational disability as a leave of absence. As we noted earlier, McGee does not contest on appeal

the district court’s finding that Paul’s personal accident insurance coverage had expired at the time

of his death. In light of the language in the complaint and McGee’s representations at the pre-trial

conference, we hold that the district court did not err in construing McGee’s complaint as failing to

set forth a claim based on a lack of notice to Paul regarding the expiration of his coverage.

C.

Finally, we address McGee’s argument that the district court abused its discretion in denying

him an opportunity to amend his complaint to state explicitly a claim for damages based on the

defendants’ failure to give Paul notice of the expiration of his coverage. The district court declined

to provide McGee with leave to amend his complaint because discovery had been completed five

months earlier. We hold that this was not an abuse of discretion. See Daves v. Payless Cashways,

Inc., 661 F.2d 1022 (5th Cir. 1981); Addington v. Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663

(5th Cir. 1981).

III.

For the foregoing reasons, we AFFIRM the decision of the district court.