UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-60071

Summary Calendar

JACKIE H. JONES; PALMA H.

BONAVENTURE; JAMES MCKEE HIGGINS,

Plaintiffs-Appellees,

VERSUS

GEORGIA PACIFIC CORPORATION; THE PRUDENTIAL

INSURANCE COMPANY OF AMERICA,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Mississippi

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

W. J. Higgins’ group life insurance policy with his company

terminated when he reached age 65. The policy provided that for 31

days following his sixty-fifth birthday he had the right to

purchase an individual life insurance p olicy without a medical

examination. If he died during that period he would receive death

benefits just as if he had bought the new policy. Higgins did not

purchase the individual policy within the 31-day period, and he

died on the thirty-second day following his sixty-fifth birthday.2

Because the thirty-first day after his birthday was a Sunday, his

family argues that he should have been covered for an extra day.

Applying federal common law, we hold (1) that the unambiguous terms

of the policy control and (2) that Higgins was not covered by the

policy on the day he died. Therefore, we reverse the judgment of

the district court and render judgment in favor of Georgia Pacific

and Prudential.

BACKGROUND

W. J. Higgins worked for Georgia-Pacific Corporation until he

was disabled in 1978. As a Georgia-Pacific employee, Higgins was

covered by a group life insurance plan issued by Prudential

Insurance Company. After being disabled, Higgins was allowed to

remain in the group plan until he reached age 65. Higgins turned

65 on September 23, 1993.

Shortly before his sixty-fifth birthday, Prudential sent

Higgins a let ter informing him that his group life insurance

coverage would terminate on September 23, 1993, and that he had 31

days from his b irthday in which to convert his insurance to an

individual policy, by making an appli cation and paying the first1 The relevant provisions of the group insurance policy state:

PRIVILEGE TO ACQUIRE INDIVIDUA L POLICY. -- The rights and

benefits of this section are for a Participant ceasing to be

a covered individual under the circumstances described in (a)

or (b) below. T he acquirement period is the thirty-one day

period immediately following the date of such cessation

.

(a) Privilege in Event of Termination o f Membership in

Eligible Classes

. -- This applies if the Participant ceases to

be a covered individual and his Participant Life Insurance

under the Group Policy then ceases by reason of termination of

his membership in the classes eligi ble for such insurance

under the Group Policy. He shall be entitled to have issued

to him by the Insurance Company, without evidence of

insurability, an individual po licy of life insurance only,

without disability or other supplementa ry benefits; b ut the

policy shall be obtainable only if written application and the

first premium payment for it are made to the Insurance Company

within the acquirement period

. . . .

* * * *

(e) Insurance Protection During Limite d Period . -- If a

Pa rticipant is entitled by the terms of this Coverage to

acquire an indivi dual policy b ut dies within the thirty-one

day period immediately following the date he ceased to be a

covered individual

, the amount of insurance which he would

have been entitled to have issued to him under the individual

policy will be paid as a claim under the Group Policy whether

or not application for the individual policy has been made.

Prudential Insurance Policy at 10 (emphasis added).

3 premium during the 31-day period. 1

The “thirty-first day immediately following” Higgins’ sixtyfifth birthday was Sunday, October 24, 1993. Higgins neither made

application to acquire an individual policy nor submitted the first

premium by that date. Likewise, on Monday, October 25, neither

Higgins nor any of his heirs made application for the individual

policy nor submitted the first premium required for such individual

policy. Higgins died on Monday, October 25, 1993, at approximately

3:20 p.m., and that day was the thirty-second day after his sixty-4

fifth birthday.

After Higgins’ death, his widow and two children (“Higgins’

heirs” or the “heirs”) sought payment on the policy from

Prudential. They argued that because the thirty-first day after

Higgins’ sixty-fifth birthday was a Sunday (a d ay on which

Prudential’s offices were closed), Higgins had no rea sonable

opportunity to comply that day, so the acquirement period (and

insurance coverage) should be extended one more day. Prudential

refused the claim, and Higgins’ heirs sued Georgia-Pacific and

Prudential (the “companies”) in Mississippi state court. The

companies removed the case to federal district court pursuant to 28

U.S.C. § 1331, based upon the existence of a federal question under

the Em ployee Retirement Income Security Act of 1974 (ERISA), 29

U.S.C. §§ 1001, et seq

.

The parties stipulated that there were no genuine issues of

material fact and cross-moved for summary judgment. The district

court denied the companies’ motion for summary judgment and granted

Higgins’ heirs’ motion for su mmary judgment. The district court

agreed with the heirs that because the final day of the acquisition

period ended on a Sunday, the period should be extended for one

day. Thus, in the district court’s view, Higgins died within the

acquisition period and was still covered by the life insurance

policy. The companies filed a timely notice of appeal.

DISCUSSION

Our review of this appeal turns on two questions: First, are

the relevant provisions of the policy ambiguous; and second, under2 The life insurance plan is an employee welfare benefit plan

governed by ERISA, 29 U.S.C. § 1002(1), so federal law preempts

state law. 29 U.S.C. § 1132(e)(1). F irestone Tire & Rubber Co. v.

Bruch , 489 U.S. 101, 110 (1989).

5 federal common law, when a private contract provides that an offer

is to be accepted within a certain number of days, and the last day

f alls on a Sunday, must the offeree accept by that day, or is he

giv en until the next business day to accept. We hold that the

offeree must accept by the last day provided for in the offer, even

if it is a Sunday.

We begin by noting that federal common law, rather than state

law, applies in this case. T od d v. AIG Life Ins. Co

. , 47 F.3d

1448, 1451. 2 In ascertaining the applicable federal common law,

we may “draw guidance from analogous state law.” B randon v.

Travelers Ins. Co.

, 18 F.3d 1321, 1325 (5th Cir. 1994) (internal

quotation omitted). “We must nevertheless bear in mind that, in so

doing, we may use state common law as a basis for new federal

common l aw ... only to the extent that state law is not

inconsistent with congressional policy concerns.” T odd

, 47 F.3d at

1451 (internal quotation and brackets omitted; ellipses in

original).

We have held that in construing ERISA plans we follow the rule

of contra proferentem

, which dictates that “when plan terms remain

ambiguous after applying ordinary principles of contract

interpret ation, courts are to construe them strictly in favor of

the insured.” Todd , 47 F.3d at 1452. In construing the contract

language “[w]e interpret ERISA plans in an ordinary and popular6

sense as would a person of average intelligence and exper ience.”

Id . n.1 (internal quotation omitted).

After reviewing the insurance policy w e hold that the

provisions at issue in this case are not ambiguous. A person of

ordinary intelligence and experience woul d understand what the

policy provides and requires of the insured: after a person ceases

being a covered individual in the group life insurance plan, he has

a 31-day “ acquirement period” in which to apply for and pay the

first premium on an individual life insurance plan. If he does not

make such application and pay such premium he will not be entitled

to an individual policy. Likewise, if the individual “dies within

the thirty-one day period immediately following the date he ceased

to be a covered individual” under the group policy, then his

beneficiaries will receive payment under the group policy as if he

had applied for and paid the premium on the individual policy.

These provisions are not ambiguous.

In this case, the starting date of this 31-day period is the

date of Higgins’ sixty-fifth birthday -- a fixed date, both as to

the day of the month and the day of the week. The period consists

of the 31 days immediately following the starting date. The

qualifying phrase “immediately following” can have no other meaning

than the 31 days in their normal and natural sequence, without

concern as to the days of the week or to the fact that the first

day or the thirty-first day or any day in between may be a Saturday

or a Sunday or a holiday or a Monday or a Wednesday. The Higgins’

h eirs argued, and the district court concluded, that these7

provisions were ambiguous because they do not state what would

happen if the thirty-first day fell on a Sunday; and that,

therefore, construing the policy provisions against the company and

in favor of the insured, the court sh ould, in effect, write into

the policy a provision that would extend the period for one day if

the thirty-first day falls on a Sunday. We disagree. As stated

earlier, these provisions are not ambiguous; what they do not say

cannot render what they do say ambiguous.

Higgins’ Heirs also urge us to follow the legal maxim dies

dominicus non est juridicus (Sunday is not a day in law). They

argue that the general common law rule is that when an act is to be

performed within a given number of days and the last day falls on

Sunday, the person charged with acting has the following day to

comply. We note, however, that what is called a common law rule

more often than not derives from state statutes rather than common

law principles. Most of the state cases cited by Higgins’ heirs

i nvolve statutes providing for an extra day if the last day is

Sunday. S ee

, e.g

., Flowers v. Provident Life & Accident Ins. Co

. ,

7 13 S.W.2d 69, 71 (Tenn. 1986); F irst National Bank of Oregon v.

Mobil Oil Corp

. , 538 P.2d 919, 920 (Or. 1975); Brooks v. Hicks

, 197

S.E.2d 711 (Ga. 1973). Counsel for the Higgins’ heirs have not

cited, and our research fails to disclose, an y federal statutory

provisions simila r to these state statutes. The closest federal

provision is Federal Rule of Civil Procedure 6(a). This rule

provides that in computing time in federal civil cases, “[t]he last

day of the period

. . . shall be included, unless it is a Saturday,3 We are aware that our Court has allowed the additional day

when the last day for filing a suit under the Carriage of Goods by

Sea Act, 46 U.S.C. §§ 1300, et seq ., fell on a Sunday. J. Aron &

Co. v. S/S OLGA JACOB

, 527 F.2d 416 (5th Cir. 1976). We believe

that Aron is distinguishable because it dealt with the limitations

period for filing a lawsuit, not the time limit for exercising an

option in a private contract. This limited reading of A ron is

supported by the fact that our Court has never cited Aron outside

the limitations period context.

8 a Sunday, or a legal holiday.

. . .” 3 However, Rule 6(a) by its

express terms applies only to “any period of time prescribed or

allowed by these rules, by the local rules of any district court,

by order of court or by any applicable statute.” We note also that

Aron expressly recognizes that Rule 6 does not apply ordinarily to

private contracts. Id . at 417.

The Higgins’ heirs urge, and the district court so concluded,

that the federal courts should adopt and apply Rule 6 to all time

periods, even those in private contracts. We decline to do so for

the following reasons:

a. Under the facts in this case we are dealing with the

period for acceptance in a private option contract. As such, “the

offeror has full control of its terms,

. . . [including] the length

of time during which the power of acceptance shall last.” C O RBIN ON

C ONTRACTS §2.14 at 195 (rev. ed. 1993). In an option contract, “the

power of acceptance may be exercised only within the time stated in

the offer.” I d

. § 2.15 at 201. The only exception is in states

where a statute provides for an extra day if the last day of

acceptance falls on a Sunday or legal holiday. I d

. § 2.14 at 201.9

b. We find no provision of the statutes of the State of

Mississippi, which is the state where these private contracts were

entered into and contemplate performance, which purports to adopt

a “don’t count Sunday” rule for private contracts in that state.

c. There is no comparable federal statute applic able to

private contracts and we find no federal cases which purport to

establish or adopt a “don’t count Sunday” rule as a matter of

federal common law applicable to private contracts.

d. Except for suicides, the date of an individual’s death is

not a matter of choice. When death occurs the day following the

expiration of insurance coverage there is a natural human reaction

to agonize over the fortuitousness of that circumstance. Such is,

however, the inherent result of defining limits and boundaries for

events, i.e. some will fall just inside and some will fall just

outside the boundaries. We can perceive no valid public policy to

be served by saying that deaths which occur on a Monday following

expiration of such a period on Sunday will be given protection and

coverage but deaths which occur on Tuesday following expiration of

such a period on Monday will not.

e. Finally, as to the time for performance by Higgins of

those acts which would have resulted in his getting new coverage

under an individual policy, the problem is not when such

performance could have occurred but the fact that such performance

never occurred; and for the court to apply a “Sundays don’t count

rule” to the facts of this case doesn’t cure the fundamental

problem of non-performance.10 CONCLUSION

Under federal common law there is no rule providing an extra

day for one to accept a pri vate contract when the last day for

acceptance falls o n a Sunday. Therefore, the last day of the

acquisition period was the thirty-first day after Higgins’ sixtyfifth birthday: Sunday, October 24, 1993. By the express terms of

the policy, the extension of benefits under the group policy ended

on that Sunday. Because Higgins did not apply for an individual

life insurance policy within the acquisition pe riod, he was not

covered by any policy when he died on Monday, October 25, 1993.

Accordingly, the dist rict court’s grant of summary judgment in

favor of Higgins’ heirs is REVERSED and summary judgment is

RENDERED in favor of Prudential and Georgia-Pacific.