UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-40664

Summary Calendar

BILL PINKERTON,

Plaintiff-Counter Defendant-Appellant,

versus

GULF STATES UTILITIES COMPANY;

ENTERGY CORPORATION; and BUCK

CONSULTANTS,

Defendants,

GULF STATES UTILITIES COMPANY;

ENTERGY CORPORATION,

Defendants-Counter Claimants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

(1:95-CV-389)

July 28, 1997

Before POLITZ, Chief Judge, KING and PARKER, Circuit Judges.* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4.

2 PER CURIAM: *

Bill Pinkerton was employed as a manger for Gulf States Utility Co. prior to

its January 1994 merger with Entergy Corp. He declined an invitation to stay with

the company and retired on April 1, 1994. As a participant in GSU’s Executive

Income Security Plan he was entitled to a lifetime severance benefit equal to fifty

percent of his average final salary. The EISP payment was determined by

offsetting the fifty percent payment by all other sources of retirement income,

including social security.

In connection with the merger, an augmented early retirement plan was

available to individuals over fifty years old who retired from GSU. The augmented

benefit was greater than the standard benefit contained in GSU’s retirement plan.

Pinkerton was eligible for the augmented benefit and received same.

Because of a computation error Pinkerton’s EISP benefits were overpaid for

the first nine months. The higher augmented retirement benefit was not deducted

from his seve r ance pay. Deduction of the lower standard benefit resulted in a

monthly overpayment of $982 .54. Upon realization of the error, Entergy

recalculated the benefit and began paying the correct amount. Pinkerton filed the2 29 U.S.C. § 1054(g).

3 Goldberg v. R.J. Longo Constr. Co. , 54 F.3d 243 (5th Cir. 1995).

3 instant suit, alleging that his EISP benefits had been reduced wrongfully and that

Entergy and GSU had breached the merger agreement.

Pinkerton contends that the district court erred in determining that the

augmented retirement benefit did not violate ER ISA § 204(g) or the merger

agreement. We are otherwise persuaded and find no error in the court’s conclusion

that Pinkerton’s EISP benefits were not changed by the merger. Entergy did not

reduce Pinkerton’s benefits after nine months--it merely corrected a computation

error and began paying the proper amount. The corrected retirement benefit neither

violated the merger agreement nor ERISA’s prohibition against decreasing accrued

benefits by amendment of a plan. 2

Pinkerton also contends that the trial court erred in concluding that he lacked

standing to enforce §§ 6.9(a)(iii) and 6.9(c) of the merger agreement. Texas law

provides that a third party may recover on a contract only if the parties intended to

secure a benefit to the third p arty and entered into the contract directly and

primarily for that reason. 3 Assuming a rguendo that Pinkerton is a third party

beneficiary of the merger agreement, the plain language thereof provides that, with

a few enumerated exceptions not including §§ 6.9(a)(iii) and 6.9(c), only parties to4

the con tract may enforce its provisions. Pinkerton was not a party to the merger

agreement; he therefore lacks the requisite standing.

We find no error and the judgment appealed is AFFIRMED.