_____________ No. 94-2266ND

_____________ Selma Fink; Craig Fink, as * Personal Representative of the * Estate of Stanley Fink; Young * America, Inc., * * Appellants, * * v. * * Union Central Life Insurance * Company; Jack Pankow, * individually and as agent of * Union Central Life Insurance * Company, * * Appellees. *

_____________ Appeals from the United States District Court for the District No. 94-3526ND of North Dakota.

_____________ Selma Fink; Craig Fink, as * Personal Representative of the * Estate of Stanley Fink; Young * America, Inc., * * Plaintiffs-Appellees, * * v. * * Union Central Life Insurance * Company; * * Defendant-Appellant, * * Jack Pankow, individually and * as agent of the Union Central * Life Insurance Company, * * Defendant. *

_____________ Submitted: May 17, 1996 Filed: August 29, 1996

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Before RICHARD S. ARNOLD, Chief Judge, and JOHN R. GIBSON and FAGG, Circuit Judges.

_____________ FAGG, Circuit Judge.

Jack Pankow, an insurance agent, sold Young America, Inc. (Youn g Americ a) a Manhattan Life Insurance Company (Manhattan Life) group lif e insurance policy that provided coverage for cert ain Young America officers and employees. The g roup policy was an employee benefit plan governed by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-146 1 (1994), and Young America was the plan administrator. Young America' s Chief Executive Offic er, Stanley Fink, had $300,000 of coverage under the policy. Stanley name d his wife Selma as the beneficiary. Manhattan Life later transferred the policy to Union Central, which cancelled th e Manhattan Life policy and issued Young America a similar policy written by Union Central. In March 1991, when Stanley was approaching the maximum ag e of eligibility for th e group policy, Stanley's son Craig telephoned Union Central to discuss converting Stanley's coverage into an individual policy

. A Union Central employee informed Craig that Stanley would be covered unde r the group policy unti l June 1, 1991. After Stanley died on May 15, 1991, Union Central rejected Selma's claim for the $300,000 death benefit , claiming Stanley had not been eligible to participate in the group policy at the time of his de ath because he was not an active, full-time employee of Young America. Young America, Selma, and Craig, as persona l representative of Sta nley's estate (collectively the Finks), then brought vari ous claims against Union Central and Pankow. The district cour t granted summary judgment for Union Central on the Finks' claims fo r wrongf ul denial of ERISA benefits, equitable estoppel, and breach o f fiducia ryduty. The district court also granted summary judgment fo r Pankow on the Finks' claims against him for misrepresentation an d intentional and negligent infliction of

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emotional distress. The Finks appeal the grant of summary judgment on all these claims. Also, the district court denied U nion Central's application for attorney's fees and costs under 29 U.S.C. § 1132 (g)(1), and Unio n Central cross-appeals the denial of its application. We affirm.
The Finks first contend the district court improperly granted s ummary judgment on their claim for wrongful denial of pension benefits, see 2 9 U.S.C. § 1132(a)(1)(B), because the record shows there are material fact disputes about whether Stanley met the policy re quirement of active, fulltime employment and was eligible for coverage. We disagree. When an ERIS A plan fiduciary, like Union Central, has authorit y to determine eligibility for an ERI SA benefit plan or to interpret plan terms, the fiduciary' s refusal to pay benefits under the plan is reviewed for an abuse o f discre tion. Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 11 5 (19 89). The district court reviewed Union Central's decision under th e abuse-of-discretion standard, and the Finks do not dispute that standard of review on appeal. Union Central did not abuse its discretion unless it s
re fusal to pay benefits was "`extraordinarily imprudent or extremel y unreasonable.'" Lick teig v. Business Men's Assurance Co. of Am. , 61 F.3d 579, 583 (8th Cir. 1995) (quoted case omitted). Having considered th e record de novo, we agree with the district court that Union Central did no t abus e its discretion in denying benefits for Stanley. Id. (court o f appeals reviews district court's application of deferential standard d e novo).
Union Central thoroughly investigate d Selma's claim for benefits and discovered overwhelming evidence that Stanley wa s not an active, full-time employee a t the time of his death. To qualify as "active" under th e policy's terms, an employee must work at the employer's regular place of employment or at some other place where the regu lar business operations of the employ er require that employee to go. Union Central learned tha t Stanley spent most of the year in Arizona, not at Young America's regular place of

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business in North Dakota, and the Finks presented no evidence that Young America asked Stanley to go to Arizona for busin ess reasons. Further, the policy provides that employees must be scheduled to work at least thirty hours a week and must be on the employer's regular payroll to be "full

time." S tanley, however, led a semi-retired lifestyle. His primar y contacts with Young America were summer visits t o the North Dakota offices and frequent phone calls to his sons, the corporation's active managers. Union Central also obtained tax records showing Stanley's salary dropped sharpl y after 1988 and he began receiving social security payments

. Despite being given an opportunity to respond to Union Central's concerns, the Fin ks did not provide Union Central with evidence showing Stanle y regularly worked thirty hours a week and was on Young America's regula r payro ll for that work. Although Stanley was still considered th e
co rporation's Chief Executive Officer, the group policy specificall y provides that corpora te officers are not eligible for coverage solely due to their titles, but must be active, full-time e mployees. Considering the inf ormation available to Union Central when it denied Selma's claim fo r benefits, see Ravenscraft v. Hy-Vee Employee Ben efit Plan & Trust , 85 F.3d 398, 4 02 (8th Cir. 1996), Union Central's denial was not an abuse o f discretion.

The F inks next contend that even if the denial of benefits wa s consistent with the p olicy's terms, Union Central should be estopped from denying benefits because Union Central misled them about Stanley' s eligibility. The Finks argue that before Union Central rewrote the policy , it informed Young America that eligibility requirements would remain the same as in the Manhat tan Life policy, but Union Central in fact added the requirement that corporate officers must be active, full-time employees. The Finks also assert the Union Central employee Craig Fink spoke to on th e telephone misled Craig by telling him Stanley would be insured under the group policy until Ju ne 1, 1996. The Finks' estoppel claims fail because common-law estoppel principles cannot be used

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to obtain ERISA benefits that are not payable un der the terms of the ERISA plan. See Jensen v. SIPCO, Inc. , 38 F.3d 945, 953 (8th Cir. 1994), cert. denied , 115 S. Ct. 1428 (1995). Courts may appl y the doctrine of estoppel in ERISA cases only to interpret ambiguous plan terms, and the Finks do no t argue the eligibility requirements are ambiguous. Slice v. Sons of Norway , 34 F.3d 630, 634-35 (8th Cir. 1994). Unlike the Finks, we do not think th e availability of estop pel principles in ERISA cases depends on whether the benefi t plan's financial soundness would be affected by ordering th e payment of benefits. See id. at 633-34.

We also r eject the Finks' claim that Union Central breached it s fiduciary duties by failing to train Young America, the plan administrator ; by ac cepting premium payments on Stanley's behalf without verifyin g Stanley's eligibility ; and by failing to provide Craig Fink with complete information about Stanley's status when Craig called Union Central. First , Union Central had no duty to train or supervise Young America because Unio n Central did not have the authority to select or remove the pla n adminis trator. Leigh v. Engle , 727 F.2d 113, 135 (7th Cir. 1984); se e American Fed'n of Unions Local 102 Health & Welf are Fund v. Equitable Life Assurance Soc'y of the United States , 841 F.2d 658, 665 (5th Cir. 1988). Second , the undisputed evidence shows Young America was responsible fo r determining employee eligibility and updating Union Central about whic h employ ees were covered by the group policy. See 29 U.S.C. § 1105(c ) (allowing co-fiduciaries to divide fiduciary dut ies and liability). Young America represented t o Union Central that Stanley was eligible, and Union Centr al had no reason to think otherwise. Although Craig testified h e called Union Central because Stanley was about t o turn seventy and planned to retire, the Finks presented no evidence Craig informed Union Centra l that Stanley had alre ady moved to Arizona and scaled back his work hours. What the Union Centra l employee told Craig was true and complete based on the information available to Union Central. Cf. Eddy v. Colonial Life Ins. Co. of Am. , 919 F.2d 747, 751 & n.3

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(D. C. Cir. 1990) (insurer had duty to inform plaintiff about conversio n rights because plaint iff told insurer his coverage under group policy was ending). In short, the Finks' assertions are insufficient to show a breac h of fiduciary duty.

We now turn to the Finks' misrepresentation and infliction o f emotional distress claims against Pankow. The district court concluded th e Finks' state common-l aw claims against Pankow were preempted by 29 U.S.C. § 1144(a) because the claims related to the group insurance plan. Se e Ingersoll-Rand Co. v. McClendon , 498 U.S. 133, 138-39 (1990). The Finks argue their state law claims affect the insurance plan in too tenuous , remot e, or peripheral a manner to be preempted, because the claims ar e based on misrepresentations Pankow made during the sale of the Manhattan Life policy to Young America, before Young Ameri ca began administering the policy for its employ ees. See Consolidated Beef Indus., Inc. v. New York Life Ins. Co. , 949 F.2d 960, 963 (8th Cir. 1991), cert. denied , 503 U.S. 985 (1992). We think the claims are probably preempted, see id. at 964, but summary judgment would be proper anyway because there is no evidence Pankow acted wrongful ly during the sale of the Manhattan Life policy. It is the Finks' position that Stanley was covered under the Manhattan Life policy , and Union Central added the active, full-time employmen t requirement for officers. Pankow presented undisputed evidence that he di d not even know the group policy was transferred to Union Central until abou t two years after the transfer. We conclude the Finks have not presente d evidence to show Pankow made misrepresentations about the policy or caused the Finks emotional distress.

The district court also treated the Finks' misrepresentation an d infliction of emotional distress claims against Pankow as ERISA claims for breach of fiduciary duty. See Slice v. Sons of Norway , 978 F.2d 1045, 104 6 (8th Cir. 1992) (per curiam) (when ERISA preempts state law claims, court should consider whether claims

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state cause of action under ERISA or federal com mon law). As the district court c orrectly concluded, Pankow did not act in a fiduciary capacit y toward the Finks. In dividuals "who provide professional services to plan administrators `are not ERISA fiduciaries unless they "transcend the norma l role" and exercise discretionary authority.'" K erns v. Benefit Trust Life Ins. Co. , 992 F.2d 21 4, 217-18 (8th Cir. 1993) (quoting Martin v. Feilen , 965 F.2d 660, 669 (8th Cir. 1992), cert. denied , 506 U.S. 1054 (1993))

. Insurance agents can become fiduciaries by participating in th e administration of a benefit plan, managing the p lan's assets, or providing investment advice for compensation about the plan's money or property. Se e 29 U.S.C. § 1002(21)(A) (defining fiduciary); O lson v. E.F. Hutton & Co. , 957 F.2d 622, 626 (8th Cir. 1992). According to the Finks, Panko w understood their insurance needs and recommendedthe Manhattan Life policy

as the one Young America should purchase, and Pankow helped Selma apply fo r Stanley's death benefit. These assertions are not enough to show Pankow crossed the line between insurance broker and fiduciary. Like th e insurance agent in Consolidated Beef Industries , Pankow was not involved in pla n administration or investments, but "was merely a salesperso n earning c ommissions and not a fiduciary under ERISA." 949 F.2d at 965

. As a nonfiduciary, Pankow is not liable for damages under ERISA, and the Finks' complaint requ ests only a damages award. Firstier Bank v. Zeller , 16 F.3d 907, 914 (8th Cir.), cert. denied , 115 S. Ct. 194 (1994).
Although the Finks make a passing re ference to federal common law in their appellate brief, they do not develop an ar gument that federal common law provides them a cause of action against Pank ow. At any rate, we would not use federal common law to allow a damages cl aim against a nonfiduciary because ERISA's carefully drafted enforcement provisions "provide strong evidence that Congres s did not intend to authorize other remedies that it simply forgot to incorporate expressly." Massac husetts Mut. Life Ins. Co. v. Russell , 473 U.S. 134, 146 (1985). Federal common law may be used

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to fill gaps in ERISA, Anderson v. John Morrell & Co. , 830 F.2d 872, 877 (8th Cir. 1987), but not to upset Congress's policy choices.

Turni ng to Union Central's cross-appeal, we conclude the distric t court did not abuse i ts discretion in denying Union Central's application

un der 29 U.S.C. § 1132(g)(1) for attorney's fees and costs. Se e Consolidated Beef Indus. , 949 F.2d at 966. Contrary to Union Central' s contention, the district court adequately considered the factors set out in L awrence v. Westerhaus , 749 F.2d 494, 495-96 (8th Cir. 1984) (pe r curiam).

Because the Finks' ERISA and state common-law claims fail as a matter of law, summary judgm ent was proper, and the district court did not abuse its d iscretion in denying Union Central's 29 U.S.C. § 1132 (g)(1 ) application for fees and costs. We affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.