*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this opinion should not be published and is not precedent except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 circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-41545

Summary Calendar

_____________________

KENNY TIMMONS,

Plaintiff-Appellant,

versus

SPECIAL INSURANCE SERVICES, INC., ET AL.,

Defendants,

AMERICAN MEDICAL SECURITY; ROBERT J. HALL;

UNITED WISCONSIN LIFE INSURANCE COMPANY,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the

Eastern District of Texas, Beaumont

USDC No. 1:96-CV-476

_________________________________________________________________

December 21, 1998

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Plaintiff Kenny Timmons appeals a take-nothing judgment in his

suit to recover unpaid medical benefits under the Employment

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

(“ERISA”). Finding no error, we affirm.

The district court ruled that because Sibon terminated its

self-funded employee benefits plan on November 30, 1996, there
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existed no plan for Timmons to proceed against under the ERISA.

The district court further ruled that Sibon, the employer and

sponsor of the plan, was not a fiduciary and therefore had breached

no fiduciary duty under the ERISA. Consequently, the district

court held that Sibon was not liable for Timmons’s medical expenses

submitted for payment after the plan’s termination, notwithstanding

that the expenses were incurred prior to that time. For the same

reasons, the district court refused to impose liability on John

Hall, Sibon’s alter ego. Finally, the district court concluded

that even if the plan administrator, American Medical Security

(“AMS”), had breached its fiduciary duty, the breach neither caused

Sibon to terminate the plan and, thus, did not cause the lost

medical benefits that Timmons now sues for. Finding no ERISA

violation, the district court granted judgment in favor of AMS,

Sibon, and its alter ego Hall.

On appeal, Timmons contends that the district court erred when

it concluded that Hall had not breached its fiduciary duty under

the ERISA. Relying on Cement and Concrete Workers Dist. Council

Welfare Fund, Pension Fund, Legal Services Fund and Annuity Fund v.

Lollo, 35 F.3d 29, 36 (2d Cir. 1994), Timmons maintains that even

absent a fiduciary breach, Hall is liable for his unpaid medical

expenses incurred prior to the plan’s termination. 

We review the district court’s findings of fact under a

clearly erroneous standard. Fed.R.Civ.P. 52(a). With respect to
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the district court’s legal conclusions, we conduct a de novo

review. Reich v. Lancaster, 55 F.3d 1034, 1045 (5th Cir. 1995).

As a general rule, ERISA permits suits to recover benefits

only against the plan as an entity, and suits for breach of a

fiduciary duty only against the fiduciary. An employer becomes an

ERISA fiduciary when it exercises any discretionary authority or

control respecting management of the plan, the administration of

the plan, or the disposition of the plan’s assets. Id. at 1046

(internal citations and quotations omitted). To establish a claim

of breach of the fiduciary duty against an employer, an ERISA

plaintiff must prove a breach of the fiduciary obligation and a

prima facie case of loss under the plan. McDonald v. Provident

Indemnity Life Insurance Co., 60 F.3d 234, 237 (5th Cir. 1995).

“Once the plaintiff has satisfied these burdens, ‘the burden of

persuasion shifts to the fiduciary to prove [there exists no causal

connection between the breach and the plaintiff’s loss under the

plan].’” Id. 

Applying these standards, there exists no evidence in the

record that Sibon, or its alter ago Hall, exercised any

discretionary authority regarding the management of its self-funded

benefits plan or the distribution of the plan’s assets. Second,

the district court’s conclusion that Sibon terminated the plan

because it was going out of business, and not in reliance on AMS’s

purported misstatements, is fully supported by the record and,

therefore, is not clearly erroneous. Finally, while it is true
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that Sibon made the decision to terminate the plan, this act is not

sufficient within itself to impute fiduciary status on the

employer, nor its alter ego. See Reich, 55 F.3d at 1048 (mere

influence alone over a plan does not transmute one into a

fiduciary). 

Timmons’s reliance on Cement is misplaced. First, Cement is

limited in application to enforcement actions by fiduciaries under

§ 1145 of the ERISA. Cement, 35 F.3d at 36. Quite differently,

Timmons is a beneficiary seeking to recover unpaid medical expenses

under § 1132 of the Act. Second, even in its limited application,

the right to recover under Cement is quite narrow. Cement permits

fiduciaries to recover ERISA contributions from an employer only

where the employer had a preexisting obligation to make the

contributions, which arose from a source external to the ERISA.

Id. at 36-37. Such is not the case before us. Indeed, Cement

makes it clear that absent a breach of fiduciary duty, or a

preexisting contractual obligation, an individual is not liable for

ERISA contributions solely by virtue of his role as a corporate

officer. Id. at 33. 

The district court has written an extensive, comprehensive,

and well-reasoned opinion, with respect to which we can find no

error material to this appeal. We agree that on this record, there

simply is no basis for imposing ERISA liability on any of the

appellees. The judgment of the district court is therefore

A F F I R M E D.
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