*

Honorable Thomas J. Meskill, Senior U.S. Circuit Judge of

the Second Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 96-4047.

Jamie A. WRIGHT, Plaintiff-Appellant,

v.

AETNA LIFE INSURANCE COMPANY, Defendant-Appellee.

April 21, 1997.

Appeal from the United States District Court for the Southern

District of Florida. (No. 95-14217-CIV-JCP), James C. Paine, Judge.

Before HATCHETT, Chief Judge, COX, Circuit Judge, and MESKILL*

,

Senior Circuit Judge.

PER CURIAM:

Jamie A. Wright ("Wright"), a participant in ERISA-qualified

VIVRA Managed Health Care Plan ("Plan"), appeals summary judgment

entered in favor of Aetna Life Insurance, the Plan administrator.

The district court concluded that a reimbursement provision in the

Summary Plan Document ("SPD") alone governed Wright's reimbursement

obligation to Aetna and that a reimbursement agreement that was

contemplated by, but separate from the SPD, must be ignored as an

informal amendment to the SPD. We reverse and remand.

I. BACKGROUND

Wright was injured in a boating accident in 1994. In order to

receive medical benefits to cover her injuries, the SPD required

her to "agree in writing" (1) to reimburse Aetna up to the amount

of Plan medical benefits she received if she collected "damages"
 1

The SPD reimbursement provision stated:

If a person suffers a loss or an injury caused by the

act or omission of a third party and medical claims

exceed $2,500, the Health Expense Benefits of this Plan

for such loss or injury will be paid only if that

person, or his or her legally authorized

representative, agrees in writing:

To pay Aetna up to the amount of the benefits

received under this Plan subject to applicable law

if damages are collected. Damages may be

collected by: action at law; settlement; or

otherwise.

To provide Aetna a lien in the amount of the

benefit paid. This lien may be filed with: the

third party; his or her agent; or a court which

has jurisdiction in the matter.

The payment and the lien referred to above shall be

made or provided to Aetna in its capacity as the

provider of administrative services to this Plan. 

 2

The reimbursement agreement stated:

Wright ... in consideration of the payment to me, ...

of any benefits for accidental bodily injuries pursuant

to the employee benefit plan established by my employer

with Aetna ..., agree ... that a first lien shall exist

and is hereby granted to the extent of all benefits

paid under said plan, in favor of Aetna ..., against

all sums of money recovered from any third person. I

further agree to reimburse said Aetna ... [subject to

Florida law], for all benefits so paid in the event of

from a third-party and (2) to provide Aetna a lien in that amount.1

To fulfill the requirement, Wright signed a reimbursement agreement

that Aetna drafted, and Aetna began paying her benefits. The

reimbursement agreement was more specific than the SPD

reimbursement provision. It provided Aetna with a lien against any

damages Wright might collect from a third-party and stated that

Wright would reimburse Aetna "to the extent the net amount of such

recovery is attributable to hospital, surgical, and medical expense

for which [Wright] received paid benefits under the [P]lan."2
recovery ... from any third person legally responsible

for said injuries, whether by suit, settlement, or

otherwise, to the extent the net amount of such

recovery is attributable to hospital, surgical, and

medical expenses for which I received paid benefits

under the plan. 

Wright eventually settled with the third-party who had caused

her boating injuries. Under the settlement agreement, Wright

released him and his insurance company from all possible liability

in exchange for $225,000. This amount purportedly was to

compensate Wright for pain, suffering, and wage loss, but not to

compensate her for past or future medical expenses.

A lien in favor of Aetna attached to the $225,000, and Wright

sued Aetna in a state court to have the lien lifted. In response,

Aetna removed the action to federal district court, where both

Aetna and Wright moved for summary judgment. Aetna argued that the

SPD reimbursement provision alone governed Wright's reimbursement

obligation and that the separate reimbursement agreement must be

ignored as an informal amendment to the SPD. According to Aetna,

the SPD reimbursement provision required Wright to reimburse Aetna

from her settlement proceeds the amount Aetna had paid to her, in

excess of $200,000, regardless of whether or not that amount was

attributable to medical expenses. Wright argued that Aetna was

bound by the reimbursement agreement since Aetna drafted the

agreement and since the SPD reimbursement provision specifically

contemplated such an agreement. According to Wright, the

reimbursement agreement required her to reimburse Aetna only from

those settlement proceeds attributable to medical expenses. The

district court granted summary judgment in favor of Aetna. It
concluded that the SPD reimbursement provision alone governed

Wright's reimbursement obligation, agreeing with Aetna that the

reimbursement agreement must be ignored as an informal amendment to

the SPD.

II. DISCUSSION

 We review a district court's grant of summary judgment de

novo, applying the same standards used by the district court.

Glass v. United of Omaha Life Ins. Co., 33 F.3d 1341, 1344 (11th

Cir.1994). Summary judgment is warranted where there is no genuine

issue of material fact. Fed.R.Civ.P. 56(c).

 Essentially, Aetna argues that the SPD reimbursement

provision's express requirement that Wright sign a reimbursement

agreement is of no import. The only language in the SPD

reimbursement provision that matters, Aetna argues, is the language

that suggests a general obligation to reimburse Aetna from third

party damages attributable to medical as well as nonmedical

expenses.

We refuse to accept an argument that asks us to ignore

explicit language in a SPD and accordingly reject Aetna's argument

that the reimbursement agreement is of no import. Rather, we look

to the reimbursement agreement to interpret Wright's reimbursement

obligation. In doing so, we note that neither Nachwalter v.

Christie, 805 F.2d 956 (11th Cir.1986), nor Alday v. Container

Corp. of Am., 906 F.2d 660 (11th Cir.1990), foreclose reliance on

the reimbursement agreement. In Nachwalter, we held that oral

communications cannot modify an unambiguous ERISA plan document

since ERISA specifically requires that plans be "maintained" in
writing. Nachwalter, 805 F.2d at 959-60. In Alday, we similarly

held that a booklet summarizing benefits, letters to employees, and

seminar documents could not modify an unambiguous plan document.

Alday, 906 F.2d at 666. Since the plan document was unambiguous,

there was no need to consider outside communications to glean the

parties' intent. Id.

Nachwalter and Alday do not control the outcome of this case

because they involved unambiguous plan documents and subsequent

amendments. Here, the SPD reimbursement provision is ambiguous and

the reimbursement agreement interpreted, rather than amended, the

provision. The SPD reimbursement provision is ambiguous in that it

can reasonably be construed in two different ways. It can be

construed as requiring Wright to reimburse Aetna only from damages

collected for medical expenses. Such a construction is reasonable

given that the provision addresses only reimbursement for medical

expenses paid by Aetna. This construction accords with the

provision's purpose, as asserted by Aetna, which is to prevent

double recovery. Wright would receive double recovery only if

damages collected from the third-party were also for medical

expenses. The provision can also be construed as requiring Wright

to reimburse Aetna from any damages collected since it uses the

broad term "damages."

The reimbursement agreement interprets this ambiguous

provision. It articulates the first construction: that Wright

must reimburse Aetna only from damages collected for medical

expenses. We have previously concluded that ERISA does not

prohibit communications from interpreting ambiguous plan documents.
 3

Since Aetna was not a party to the settlement agreement,

that agreement's purported allocation of damages does not govern

the district court's determination. To hold otherwise would

allow Wright and the third party to control Aetna's reimbursement

rights. 

See Kane v. Aetna Life Insurance, 893 F.2d 1283, 1286 (11th

Cir.1990) ("Requiring [a plan administrator] to adhere to the ...

interpretations of the Plan's provisions made by the [plan

administrator] will not undermine the integrity of the Plan.").

 For these reasons, we hold that the SPD reimbursement

provision as interpreted by the reimbursement agreement governs

Wright's reimbursement obligations. We further hold that under the

SPD reimbursement provision as interpreted by the reimbursement

agreement, Wright is obligated to reimburse Aetna only "to the

extent the net amount" of her settlement is attributable to medical

expenses. The district court did not have the opportunity to

determine the extent to which the net amount of Wright's settlement

is attributable to medical expenses. On remand, the district court

should make this determination.3

Summary judgment in favor of Aetna is REVERSED, and the case

is REMANDED for further proceedings consistent with this opinion.

REVERSED and REMANDED.