* Local Rule 47.5.1 provides: "The publication of opinions that have

no precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession." Pursuant to that Rule, the Court has determined that this

opinion should not be published. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 95-20068

(Summary Calendar)

_______________

CHARLES F. PIZZITOLA, JR.,

Plaintiff-Appellant,

versus

RONALD V. CALDARERA d/b/a

Toby's Liquor,

NATIONAL INSURANCE SERVICES, INC.,

As administrator of the Toby's

Liquor Employee Benefit Plan, and

PAN AMERICAN LIFE INSURANCE COMPANY,

Defendants-Appellees.

_______________________________________________

Appeal from the United States District Court

For the Southern District of Texas

(CA-H-93-3813)

_______________________________________________

(October 20, 1995)

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: *

Plaintiff Charles F. Pizzitola, Jr. appeals from the district

court's adverse rulings on his ERISA claims, brought under 29

U.S.C. § 1140 for intentional interference with his attainment of

group medical plan benefits, and under 29 U.S.C. 1132(a)(1)(B) to-2-

recover benefits due to him under the plan. We affirm.

I

For sev eral years, Pizzitola had been an employee of Toby's

Liquor, a retail and wholesale liquor store in Houston, Texas,

owned by Ronald Caldarera. Pizzitola delivered cases of liquor,

beer and soft drinks, stocked the warehouse and cooler, and

generally assisted customers. As an employee, Pizzitola was a

beneficiary of the store's group medical plan govern ed by the

Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001,

et seq. ("ERISA").

The group medical plan was underwritten by Pan American Life

Insurance Company ("PALIC " ), and was administered by National

Insurance Services, Inc. ("NIS"), a wholly-owned subsidiary of

PALIC. Pizzitola had a $500 deductible under the plan. As sponsor

of the plan, Caldarera was responsible for paying the premiums and

would deduct a certain percentage of the cost from Pizzitola's

paychecks each month.

In late April of 1993, Pizzitola reported to Caldarera that he

had injured his lower back while making a delivery. On the advice

of his doctor , Pizzitola did not return to work the entire next

week. At the end of that week, Pizzitola received a paycheck,

which had the usual deduction for insurance under the plan. On May

10, ten days later, Pizzitola returned to Toby's Liquor to pick up

another paycheck even though he had been absent from work a second

week. Caldarera refused to give him another paycheck, and a

disput e arose in which Pizzitola's continued employment was1 This suit was originally filed in Texas state court, from where NIS

had it removed to federal court. Pizzitola subsequently amended his complaint

to include PALIC as a defen dant. The district court entered a Memorandum and

Order or Dismissal, denying Pizzitola and Caldarera's motions for partial summary judgment, and granting NIS and PALIC's motions for summary judgment in part,

leaving intact Pizzitola's claims under §§ 1132 and 1140.

2 The jury also returned an unfavorable verdict on Pizzitola's common

law negligence claim against Caldarera. The plaintiff does not appeal from this

verdict.

-3- conditioned on his obtaining a doctor's release. Pizzitola left

the store and never returned to work.

About two weeks later, Caldarera te lephoned his insurance

broker for advice on how to cancel Pi zzitola's medical coverage.

As instructed, Caldarera wrote "C.F. Pizzitola 5-1-93 No Longer

Works Here" on the back of his June statement from NIS. When NIS

received this statement, it retroactively terminated Pizzitola's

coverage unde r the plan, effective May 2, 1993. On July 19,

Pizzitola underwent surgery at Rosewood Hospital, and in August he

submitted a claim for reimbursement of medical expenses to NIS.

After Walter Zimmerman, vice president of claims for NIS, reviewed

the file, NIS denied Pizzitola' claim, concluding that he was no

longer eligible for coverage under the group medical plan.

Pizzitola filed suit alleging, inter alia

, that Caldarera had

intentionally interfered with his attainment of plan benefits, in

violation of 29 U.S.C. § 1140, and seeking review under 29 U.S.C.

§ 1132(a)(1)(B) of NIS's determination that Pizzitola was not

entitled to benefits under the plan. 1 At the end of the trial, the

district court submitted the ERIS A questions to the jury for

advisory purposes. The jury returned a verdict against Pizzitola

on all questions submitted. 2 The district court then entered its-4-

findings of fact and conclusions of law, and its Final Judgment

that Pizzitola take nothing on his claims against all defendants.

II

Pizzitola contends that, because the evidence to the contrary

is overwhelmi ng, the district court erred in concluding that

Caldarera did not violate 29 U.S.C. § 1140. Section 1140 makes it

"unlawful for any person to disch arge, fine, suspend, expel,

discipline, or discriminate against a participant or beneficiary

. . . for the purpose of interfering with the attainment of any

right to which such participant may become entitled to under the

plan

. . . ." 29 U.S.C. § 1140 (emphasis added). P erdue v. Burger

King Corp.

, 7 F.3d 1251, 1255 (5th Cir. 1993). At trial, Pizzitola

was required to prove that his employer acted with the specific

intent to interfere with the attainment of some right to which he

had become entitled under the plan. Id. ; McGann v. H. & H. Music

Co. , 946 F.2d 401, 404 (5th Cir. 1991), cert. denied , ___U.S.___,

113 S. Ct. 482, 121 L. Ed. 2d 387 (1992).

We review the district court's factual findings to ensure they

are not clearly erroneous, and we will affirm them if they are

supported by the record. F E D

. R. C IV . P. 52(a); Villar v. Crowley

Maritime Corp.

, 990 F.2d 1489, 1497 (5th Cir. 1993), cert. denied

,

___U. S.___, 114 S. Ct. 690, 126 L. Ed. 2d 658 (1994). "If the

district court's account of the evidence is plausible in light of

the record viewed in its entirety, the court of appeals may not

reverse it even though co nvinced that had it been sitting as the

trier of fact, it would have weighed the evidence differently.3 The policy provided that the plan sponsor could continue insurance

for a period of three months on an employee who ceases active work because of a

d isability. The district court found that Pizzitola ceased active work with

-5- Where there are two permissible views of the evidence, the fact

finder's choice between them cannot be clearly erroneous."

Anderson v. City of Bessemer City, N.C.

, 470 U.S. 564, 574, 105 S.

Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985).

There was evidence presented at trial that Pizzitola stopped

working because of his back injury, and that Caldarera would not

allow him to continue making deli veries unless he obtained a

doctor's release. Pizzitola's education, training, and experience

were not shown to have suited him for work other than manual labor.

The evidence also supports the finding that Caldarera treated

Pizzitola as a terminated employee from at least May 10, 1993

onward, when he refused t o pay Pizzitola an additional week's

salary for the second week he had not reported to work.

Accordingly, we find that the district court was not clearly

erroneous to conclude that Caldarera terminated the employment of

Pizzitola because of Pizzitola's inability or refusal to continue

working for him, and that Caldarera therefore did not have the

requisite intent under section 1140 to interfere with Pizzitola's

ERISA rights.

On appeal, Pizzitola argues that the ev idence demonstrated

Caldarera's "callous disregard for plaintiff's rig hts and wellbeing." For instance, he correctly points out that Caldarera

"could have continued plaintiff's insurance" by paying the

premiums, even if he had stopped paying Pizzitola's s alary. 3 AsCaldarera because of a disability within the meaning of the policy.

-6- Pizzitola was aware, however, a participant ceased to be eligible

for coverage when he was no longer performing his normal duties on

a full-time basis for at least thirty hours a week. In other

words, Caldarera had the right to terminate Pizzitola's insurance

coverage, and his decision to decline the option of continuing the

coverage does not establish that he discharge d Pizzitola with an

intent to interfere with his ERISA rights.

Pizzitola also argues that the "Application and Subscription

Agreement" filled out by Toby's Liquor imposed a duty on the

"Applicant-Sponsor" to "notify all employees of any termination or

rescission of coverage which affects them." Pizzitola claims that

Caldarera's failure to notify him that his insurance was cancelled

deprived him of his right to convert his coverage within thirty-one

days after the insurance ended. Pizzitola knew by at least May 10,

however, that his employment had been terminated and that he was

therefore no longer eligible for coverage. Even if we assume that

the policy application imposed a legal duty on Caldarera to notify

Pizzitola that his coverage had been terminated, we do not believe

t hat Caldarera's failure to do so on or after June 9 establishes

that he discr iminated against or terminated Pizzitola on May 10

with the specific intent to interfere with his attainment of any

ERISA benefits due under plan. In sum, we hold that the district

court was not clearly erroneous in finding that Caldarera did not

violate 29 U.S.C. § 1140.

III-7-

Pizzitola also contends that the district court erred by

concluding that NIS did not abuse its discretion in denying his

c laim for benefits. We have held that a district court properly

reviews a plan administrator's factual determinations for abuse of

discretion. P ierre v. Connecticut Gen. Life Ins. Co.

, 932 F.2d

1552, 1562 (5th Cir.), cert. denied

, 502 U.S. 973, 112 S. Ct. 453,

116 L. Ed. 2d 470 (1991). In evaluating whether the plan

administrator abused in his discretion, the court may consider only

the evidence that was available to the plan administrator at the

time he made the factual determinations. S outhern Farm Bureau Life

Ins. Co. v. Moore , 993 F.2d 98, 103 (5th Cir. 1993). Because the

district court's determination is a mixed question of law and fact,

"we review de novo the district court's holding on the question of

whether the p lan administrator abused its discretion or properly

d enied a claim for benefits. However, we will set aside the

district court's factual findings underlying its review of the plan

administrator's determination only if clearly erroneous." S weatman

v. Commercial Union Ins. Co.

, 39 F.3d 594, 600-01 (5th Cir. 1994).

Pizzitola claims that "a prudent and impartial" administrator

w ould have made further investigation if presented with the

information available to Zimmerman, the vice president for claims

at NIS. "In applying the abuse of discretion standard, we analyze

whether the plan administrator acted arbitrarily or capriciously."

Salley v. E.I. DuPont de Nemours & Co.

, 966 F.2d 1011 , 1014 (5th

Cir. 1992). As a fiduciary, NIS must provide a "full and fair

review" of claim denials. 29 U.S.C. § 1133(2); Pierre , 932 F.2d4 Pizzitola did not incur more than $500 in medical expenses until July

19.

-8- at 1557.

The record in this case supports a finding that Zimmerman

provided a full and fair review of Pizzitola's claim for benefits

and did not abuse his discretion in determining that the claim

should be denied. At the time of his investigation, Zimmerman had

before him the following information: that NI S had been informed

that Pizzitola's employment by Toby's Liquor had ended on May 1;

that NIS had thereupon ended his medical coverage; that NIS had

refunded to Caldarera the May and June premiums attributable to

Pizzitola; that no request had been received from Caldarera to

continue coverage on Pizzitola as a disabled employee; and that no

claims on the policy had been received from Pizzitola that exceeded

the $500 deductible when Pizzitola's employment ended, or by June

9, 1993, when NIS received Caldarera's notice. Zimmerman also

spoke to the insurance broker who had advised Caldarera on how to

terminate Pizzitola's insurance coverage.

Because Pizzitola alleged that he was injured in the scope of

hi s employment, Zimmerman also considered whether the "extended

benefits for disability" section of the plan might cover his claim.

Under the plan, an employee's coverage was extended for forty-five

days if he was "disabled" at the time his insurance ended. Even if

Pizzitola was disabled at the time his insura nce ended on May 1,

his coverage would only have been extended to June 15. As of June

15, Pizzitola had incurred less than the $500 deductible. 45 Pizzitola also claims that defendants had a duty under The

Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") to keep him

informed of his rights. Because this claim is raised for the first time on

appeal, we decline to review this argument. Reich v. Lancaster , 55 F.3d 1034,

1055-56 (5th Cir. 1995); E EOC v. Clear Lake Dodge

, 60 F.3d 265, 1151 n.4 (5th

Cir. 1994) ("[T]his circuit has a long-standing rule that it will not consider

for the first time on appeal an argument not made to the district court.").

6 Section 1132(g)(1) provides that "the court in its discretion may

allow a reasonable attorney's fee and costs of action to either party." 29

U.S.C. § 1132(g)(1).

-9- Pizzitola also asserts that coverage was extended by Caldarera

h aving paid the May and June premiums covering his insurance.

Zimmerman did not abu se his discretion in determining that

Caldarera had not intended to continue coverage by paying the

premiums. NIS was not given notice that Toby's Liquor wanted to

continue Pizzitola's coverage. To the contrary, NIS had received

Caldarera's notice on the back of th e June statement indicating

that Pizzitola's coverage should be terminated as of May 1. When

the premiums were refunded, Caldarera had not attempted to retender

them. Having reviewed the record, we agree with the district

court's determination that the plan administrator in this case did

not abuse his discretion in denying Pizzitola's claim for

benefits. 5

IV

Pizzitola also contends that the district court erred in

denying him reasonable attorney's fees and costs. The court had

discretion under 29 U.S.C. § 1132(g)(1) 6 to award attorney's fees,

and we review its decision for abuse of discretion. Izzarelli v.

Rexene Products Co. , 24 F.3d 1506, 1525 (5th Cir. 1994).

The district court's denial of attorney's fees was based on an7 The court in B owen recommended that a district court con sider the

following five factors:

(1) the degree of the opposing parties' culpability or bad faith;

(2) the ability of the opposin g parties to satisfy an award of

attorneys' fees; (3) whether an award of attorneys' fees against the

opposing parties would deter other persons acting under similar

cir cumstances; (4) whether the parties requesting attorneys' fees

sought to benefit all participan ts and beneficiaries of an ERISA

plan or to resolve a significant legal question regarding ERISA

itself; (5) the relative merits of the parties' positions.

624 F.2d at 1266 (footnote omitted).

-10- evaluation of the five-factor test set out in Iron Workers Local

No. 272 v. Bowen

, 624 F.2d 1255, 1266 (5th Cir. 1980). 7 Responding

to the fourth factor, the court found that the issues litigated in

this case did not hav e broad applicability to other ERISA

participants, and there was thus no policy reason for awarding

attorney's fees. The court also concluded that the relative merits

of the parties' positions weighed in favor of the defendants. We

do not believe these findings to be clearly erroneous. S ee Ramsey

v. Colonial Life Ins. Co. of America , 12 F.3d 472, 480 (5th Cir.

1994) (affirming a de nial of attorney's fees for the prevailing

plaintiff where there was little deterrent effect and the suit had

no applicability to other ERISA applicants). In light of the

record and our holding with regard to Pizzitola's substantive

claims, we find that the district court did not abuse its

discretion by denying attorney's fees.

V

The judgment of the district court is AFFIRMED.