UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT FRIZ, 

Plaintiff-Appellant,

v.

J&H MARSH & MCLENNAN,

INCORPORATED; J&H MARSH &  No. 00-1940

MCLENNAN, INCORPORATED,

Acquisition Severance Pay Plan;

EDWARD P. PAZICKY, Plan

Administrator,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(CA-00-1173-AMD)

Argued: December 7, 2000

Decided: January 22, 2001

Before WIDENER and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. Judge King wrote a dissenting opinion. 

COUNSEL

ARGUED: Francis Joseph Collins, KAHN, SMITH & COLLINS,

P.A., Baltimore, Maryland, for Appellant. William George Miossi,
WINSTON & STRAWN, Washington, D.C., for Appellees. ON

BRIEF: Christine C. Stein, WINSTON & STRAWN, Washington,

D.C., for Appellees. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Robert Friz (Friz) appeals the district court’s entry of judgment in

favor of J&H Marsh & McLennan, Inc. (Marsh), an insurance brokerage company, the J&H Marsh & McLennan, Inc. Acquisition Severance Pay Plan (the Marsh Severance Pay Plan or the Plan), and

Edward Pazicky (Pazicky), the administrator for the Plan. In the district court, Friz sought review of Pazicky’s determination that he was

ineligible for enhanced severance benefits under the Plan, an

employee welfare benefit plan governed by the Employee Retirement

Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. For

the reasons stated below, we affirm. 

I

In November 1998, Marsh & McLennan Companies, Inc. (MMC),

the parent of Marsh, acquired Sedgwick, Inc. (Sedgwick). As a result

of the acquisition, Sedgwick was merged into various subsidiaries of

MMC. 

On January 4, 1999, Marsh sent by email a memorandum (the

Broadcast Memo) to all Marsh employees in the United States

informing them that the acquisition of Sedgwick would result in certain staff reductions. Although the Broadcast Memo was sent to all

Marsh employees in the United States, Friz, a vice-president in

Marsh’s Baltimore, Maryland office at the time, contends he did not

2 FRIZ v. J&H MARSH & MCLENNAN
receive it; in any event, Friz did have access to the memo from his

computer on Marsh’s Lotus Notes database. 

The Broadcast Memo explained that those employees laid off in

connection with the reduction-in-force would be eligible for severance benefits under a "Merger Severance Pay Plan." The Broadcast

Memo explained that, under the proposed Merger Severance Pay

Plan, separating employees would be eligible for one of two types of

severance benefits: basic or enhanced. According to the Broadcast

Memo, basic severance benefits consisted of two weeks base salary

paid in a lump sum to all employees terminated under the Merger

Severance Pay Plan. Enhanced severance benefits provided greater

benefits, but the Broadcast Memo indicated that the receipt of those

benefits was expressly contingent upon signing "a waiver and release

agreement in the form provided by the company that includes a specific clause on non-solicitation of both accounts and employees of the

company." 

The Marsh Severance Pay Plan went into effect on March 31, 1999

and terminated on December 31, 1999.1 The Plan provided that its

purpose was "to provide severance pay and benefits to eligible

[Marsh] employees" terminated as a result of the acquisition of Sedgwick. The Plan provided that eligible employees would be entitled to

one of two types of severance benefits, either basic or enhanced. 

Under the Plan, basic severance benefits consisted of two weeks

base salary, paid in a lump sum two weeks following termination. An

employee was eligible for enhanced severance benefits if the

employee signed "a Waiver and Release Agreement in a form prepared by the Company ("Waiver and Release"), and such Waiver and

Release becomes effective by its terms."2 Thus, unlike the language

1The parties seem to agree that the Plan, as contained in the record,

contains two documents, one entitled "J&H Marsh & McLennan, Inc.

Acquisition Severance Pay Plan Summary Plan Description," and the

other entitled, "J&H Marsh & McLennan, Inc. Amended Merger Severance Pay Plan." Unless we specify otherwise, when we refer to the Plan,

we are referring to the J&H Marsh & McLennan, Inc. Acquisition Severance Pay Plan Summary Plan Description. 

2The J&H Marsh & McLennan, Inc. Amended Merger Severance Pay

Plan employs similar but not identical language. It provides that an

FRIZ v. J&H MARSH & MCLENNAN 3
contained in the Broadcast Memo, the Plan did not contain a specific

clause pertaining to the solicitation of both accounts and employees

of Marsh. Enhanced severance benefits were calculated by using a

seniority formula, with a minimum benefit consisting of four weeks

base salary, plus a $1,500 to $3,500 allowance for health benefits continuation, out-placement assistance, and other benefits. 

On January 31, 1999, Friz was selected for termination in conjunction with MMC’s acquisition of Sedgwick. On April 15, 1999, Friz

received written notification of his termination. At that time, he was

offered a "Change of Employment Status/Waiver and Release Agreement" (the Agreement). The Agreement provided that in exchange for

$89,440 and other benefits, Friz would release any real or potential

claims against Marsh and forego his right to solicit certain customers

and employees of Marsh for one year. 

By the terms of the Agreement, Friz had a forty-five day period,

or until May 31, 1999, to consider its terms and accept it. Friz did not

sign the Agreement during the forty-five day period or any time thereafter, nor did he raise any questions or issues concerning the scope of

the Agreement during this period. Thus, under the Plan, he qualified

only for basic severance benefits, which he received in due course.

The record reflects that Friz chose not to accept the Agreement

because he intended to, and apparently did in fact, solicit Marsh’s clients. 

On October 28, 1999, Friz initiated an administrative appeal under

the Marsh Severance Pay Plan regarding his failure to qualify for

enhanced severance benefits. According to Friz, he was entitled to

enhanced severance benefits because the Plan did not condition the

receipt of enhanced severance benefits on the non-solicitation of both

accounts and employees of Marsh. After review, Pazicky denied

Friz’s claim for the following reasons: "(1) the Plan’s language

expressly provided that the terms of the Waiver and Release would

be prepared" by Marsh and "Friz failed to sign the Waiver and

employee will be eligible for enhanced severance benefits if the

employee signs "a Waiver and Release Agreement prepared by the Company." 

4 FRIZ v. J&H MARSH & MCLENNAN
Release" as prepared by Marsh; "(2) Friz failed to sign the Agreement

within the forty-five day period as required under the Plan; (3) the

non-solicit clause was reasonable in that it was narrowly drawn"; (4)

the Agreement offered generous compensation; and (5) "as early as

January 4, 1999, Friz, along with all other potential participants, had

been advised that the Waiver and Release would include a ‘specific

clause on non-solicitation of both accounts and employees’" of

Marsh. 

On March 14, 2000, in the Circuit Court for Baltimore City, Maryland, Friz filed a complaint against Marsh, the Marsh Severance Pay

Plan, and Pazicky to recover under ERISA the enhanced severance

benefits denied to him by Pazicky. After the case was removed to the

United States District Court for the District of Maryland in April

2000, Marsh, the Plan, and Pazicky filed a motion to dismiss, or in

the alternative, for summary judgment. After full briefing on the

motion and oral argument, the district court issued an order on June

27, 2000 granting the defendants’ motion and dismissing Friz’s complaint with prejudice. The district court held that Pazicky’s interpretation of the Plan to deny Friz’s claim for enhanced severance benefits

was reasonable. Friz noted a timely appeal. 

II

Decisions by plan administrators are generally reviewed de novo.

See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 112

(1989). However, if the plan gives the plan administrator discretionary authority to determine eligibility or to construe the terms of the

plan, our review of the plan administrator’s decision is for an abuse

of discretion. See Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 232 (4th

Cir. 1997). Under this deferential standard, we will not disturb the

decision of the plan administrator if it is reasonable, even if we would

have reached a different conclusion independently. See id. Whether

a plan gives the plan administrator discretionary authority is a question we review de novo. See id. at 233. 

In this case, there is really no question that Pazicky possessed discretionary authority to determine Friz’s entitlement to enhanced severance benefits under the Plan. The parties essentially do not dispute

FRIZ v. J&H MARSH & MCLENNAN 5
this, and the Plan’s language is crystal clear on this point.3

 Therefore,

we must determine if Pazicky exercised his discretion reasonably. See

id. at 232. 

In assessing the reasonableness of a plan administrator’s decision,

we may consider, but are not limited to, such factors as:

(1) the language of the plan; (2) the purposes and goals of

the plan; (3) the adequacy of the materials considered to

make the decision and the degree to which they support it;

(4) whether the fiduciary’s interpretation was consistent

with other provisions in the plan and with earlier interpretations of the plan; (5) whether the decisionmaking process

was reasoned and principled; (6) whether the decision was

consistent with the procedural and substantive requirements

of ERISA; (7) any external standard relevant to the exercise

of discretion; and (8) the fiduciary’s motives and any conflict of interest it may have.

Booth v. Wal-Mart Stores, Inc., 201 F.3d 335, 342-43 (4th Cir. 2000).

Applying these factors, we conclude that Pazicky’s decision denying Friz enhanced severance benefits was reasonable. First, his decision was consistent with the language of the Plan. The Plan provided

that eligibility for enhanced severance benefits was contingent upon

an employee executing a "Waiver and Release Agreement in a form

prepared" by Marsh. Marsh prepared a "Waiver and Release Agreement" and presented it to Friz for execution. In the Agreement, Friz

was asked to, in exchange for $89,440 and other benefits, release

Marsh from liability, waive any real or potential claims against

3On this point, the Plan provides: 

The Plan Administrator shall have the responsibility and the discretionary authority to interpret the terms of this Plan, to determine eligibility for benefits, and to determine the amount of such

benefits. The Plan Administrator may award additional benefits

under this Plan at his sole discretion. The interpretation and

determinations of the Plan Administrator shall be final and binding unless determined by a court of competent jurisdiction to be

arbitrary and capricious. 

6 FRIZ v. J&H MARSH & MCLENNAN
Marsh, and waive his right to solicit certain customers and employees

of Marsh for one year. As a consequence of his failure to execute the

Agreement, Friz was only entitled to basic severance benefits, which

he received.4

Second, Pazicky’s decision was consistent with the purposes and

goals of the Plan. The purpose of the Plan was "to provide severance

pay and benefits to eligible [Marsh] employees" terminated as a result

of the acquisition of Sedgwick, and the Plan provided that eligible

employees would be entitled to one of two types of benefits, either

basic or enhanced. In accordance with the terms of the Plan, Friz

received the benefits to which he was entitled, thus fulfilling the purposes and goals of the Plan. 

Third, the materials considered by Pazicky in reaching his decision,

primarily the Plan and the Agreement, were adequate and fully support the reasonableness of his decision.5

Fourth, Friz does not argue and the record does not reflect that the

provisions of the Plan have been inconsistently applied to the Marsh

employees terminated in 1999 as a result of the Marsh-Sedgwick

merger. Indeed, it appears that no employee who elected not to execute the Agreement received enhanced severance. 

Fifth, Pazicky’s decisionmaking process was reasoned and principled. In his decision, Pazicky reviewed the Plan’s language in a rea4We note that Pazicky was under the mistaken belief that the Plan

required Friz to execute the Agreement by May 31, 1999 to secure

enhanced severance benefits. Rather, the Agreement, and not the Plan,

contained the forty-five day provision. 

5Secondarily, Pazicky considered the Broadcast Memo, expressing the

view that, through it, Friz was on notice that the Agreement would contain a specific provision containing a waiver of the right to solicit clients

and employees of Marsh. Friz contends that Pazicky erred when he considered the Broadcast Memo in rendering his decision. We need not

address this argument because, in rendering his decision, Pazicky primarily considered the Plan and the Agreement, not the Broadcast Memo.

Thus, Pazicky’s consideration of the Broadcast Memo does not undermine the reasonableness of his decision. 

FRIZ v. J&H MARSH & MCLENNAN 7
sonable manner and applied that interpretation to Friz. In addition,

there is no dispute that, administratively, Friz had an opportunity to

litigate his claim. 

Sixth, Pazicky’s decision was consistent with the procedural and

substantive requirements of ERISA. As noted above, Pazicky’s decision was consistent with the language of the Plan. Further, Friz was

fully aware of his rights and obligations under the Plan. To receive

basic severance benefits, he had to do nothing; to receive enhanced

severance benefits, he had to execute the "Waiver and Release Agreement" prepared by Marsh. He chose the former. 

With regard to factor seven, any external standard relevant to the

exercise of discretion, and factor eight, the fiduciary’s motives and

any conflict of interest it may have, Friz contends that Pazicky, as an

employee of Marsh, acted under a conflict of interest. A plan administrator’s "conflict of interest, in addition to serving as a factor in the

reasonableness inquiry, may operate to reduce the deference given to

a discretionary decision" of that plan administrator. Booth, 201 F.3d

at 343 n.2. A conflict of interest reduces the deference to the degree

necessary to "neutralize any untoward influence resulting from that

conflict." Doe v. Group Hospitalization & Medical Servs., 3 F.3d 80,

87 (4th Cir. 1993). In other words, "[t]he more incentive for the

administrator or fiduciary to benefit itself by a certain interpretation

of benefit eligibility or other plan terms, the more objectively reasonable the administrator or fiduciary’s decision must be and the more

substantial the evidence must be to support it." Ellis, 126 F.3d at 233.

In this case, even if Friz could demonstrate a conflict of interest,

our review would be confined to determining whether Pazicky’s decision was objectively reasonable. See Elliott v. Sara Lee Corp., 190

F.3d 601, 605 (4th Cir. 1999). Applying this standard, for essentially

the same reasons set forth above, we conclude that Pazicky’s decision

was objectively reasonable as a matter of law. 

III

In summary, our consideration of the Booth factors leads to the

inescapable conclusion that Pazicky’s decision denying Friz enhanced

8 FRIZ v. J&H MARSH & MCLENNAN
severance benefits was reasonable. Accordingly, we affirm the judgment of the district court.

AFFIRMED

KING, Circuit Judge, dissenting: 

The ultimate issue in this case is simple: Does a "Waiver and

Release Agreement" reasonably encompass a non-solicitation clause?

It plainly does not, and I respectfully dissent. 

I.

This issue arises in the context of a plan administrator’s construction of an ERISA benefit plan.1

 By its terms, the Plan provided, inter

alia, that an employee would be eligible for enhanced severance benefits if he signed "a Waiver and Release Agreement in a form prepared

by the Company[.]" The district court granted judgment to Marsh,

determining that Friz could be required to execute a Waiver and

Release Agreement containing a non-solicitation clause. I disagree,

and I would reverse. 

II.

A.

As the majority observes, we accord substantial deference to a plan

administrator’s eligibility determination when the plan vests the

administrator with discretionary authority to construe it. See Ellis v.

Metro. Life Ins. Co., 126 F.3d 228, 232 (4th Cir. 1997). To pass muster, however, Pazicky’s construction of the Plan must be objectively

reasonable. See id.2 I am convinced that Pazicky’s decision to deny

1The ERISA plan to be construed is the J&H Marsh & McLennan, Inc.

Acquisition Severance Pay Plan (the "Plan"), as exclusively set forth in

the Summary Plan Description. 

2Where, however, a conflict exists between the interests of the plan

administrator and the employee, the deference accorded the administrator

is reduced to "the extent necessary to counteract any influence unduly

FRIZ v. J&H MARSH & MCLENNAN 9
Friz enhanced benefits was, as a matter of law, unreasonable and

inconsistent with the plain and unambiguous provisions of the Plan.

B.

In assessing Pazicky’s decision to deny Friz his enhanced benefits,

we must confine our analysis to the terms of the written Plan as it was

presented to the employees (the Plan’s prospective beneficiaries).

While the Plan expressly conditioned receipt of enhanced benefits on

the signing of "a Waiver and Release Agreement in a form prepared

by the Company," it did not further define the agreement, and it contained no reference to a non-solicitation clause. 

Marsh insists that it had, by means of its so-called Broadcast Memo

of January 4, 1999, ante at 2-3, informed its employees that the

Waiver and Release Agreement would "includ[e] a specific clause on

non-solicitation of both accounts and employees of the company."

While Friz denies receiving the Broadcast Memo, this point is a red

herring. Put simply, neither this fugitive document nor its contents

were embodied in the written Plan. An ERISA plan may be construed

only by its written terms, without reference to unincorporated ancillary documents. See 29 U.S.C. § 1104(a)(1)(D) (establishing the duty

of plan fiduciaries to act solely "in accordance with the documents

and instruments governing the plan."). 

Although Marsh was entitled to amend the Plan — and to incorporate into it a non-solicitation provision — it did not do so. Because

Marsh did not so amend the Plan, Pazicky could not rely on the

Broadcast Memo in determining the scope of the Waiver and Release

Agreement. Likewise, in evaluating the reasonableness of Pazicky’s

construction, we must limit our analysis to the contents of the Plan

itself. 

resulting from the conflict." Ellis, 126 F.3d at 233. While Pazicky faced

a serious conflict of interest in this case — since his expansive interpretation of waiver and release would necessarily accrue to his employer’s

benefit — we need not resolve the precise scope of any deference owed,

as Pazicky’s construction of the Plan was patently unreasonable. 

10 FRIZ v. J&H MARSH & MCLENNAN
C.

Construing the Plan to encompass a non-solicitation provision perverts the plain meaning of the terms "waiver" and "release," considered either separately or in combination. For example, Black’s Law

Dictionary defines "waiver" as "[t]he voluntary relinquishment or

abandonment . . . of a legal right or advantage." Black’s Law Dictionary 1574 (7th ed. 1999). Similarly, that text defines "release" as

"[t]he relinquishment or concession of a right, title, or claim." Id. at

1292. 

In this circumstance, it would have been reasonable to expect the

Waiver and Release Agreement to cover all claims Friz could raise

against Marsh, such as discrimination claims or compensation disputes, arising from his employment or termination. Presumably,

Friz’s execution of such an agreement would be valuable to Marsh,

sparing the company the uncertainty and expense of potential lawsuits. While Marsh would also derive considerable value from a nonsolicitation agreement, such a provision involves a distinct type of

forbearance on the part of Friz. Whereas a waiver and release would

preclude former employees from pursuing claims against Marsh — in

particular, claims arising out of (past) events — a non-solicitation

agreement inhibits the employee from engaging in (future) business

conduct.3

3

Indeed, the draft Waiver and Release Agreement prepared by Marsh

implicitly regarded the waiver and release as entirely distinct from the

non-solicitation clause. The unexecuted agreement provided in part: 

In exchange for providing you with the above referenced payments . . ., you agree to waive all claims against the Company

and release and discharge the Company from liability for any

claims or damages that you may have against it as of the date of

this Agreement, whether known or unknown to you. This waiver

and release includes, but is not limited to, any claims arising

under any federal, state or local law or ordinance . . . . 

J.A. 37-38 (emphasis added). The prohibition against solicitation followed in a separate clause: 

You also agree that for the one year period following termination, you will not, directly or indirectly, solicit, divert, or take

FRIZ v. J&H MARSH & MCLENNAN 11
III.

Under the Plan’s terms, Marsh retained control over the specific

form of the Waiver and Release Agreement. Marsh was entitled to

prepare the agreement, but it was nonetheless constrained by the

essential nature of a waiver and release. When Marsh inserted the

non-solicitation clause into the Waiver and Release Agreement, it

added an invalid condition to which Friz could not reasonably be

held. 

I believe the district court erred in its disposition of Friz’s claim,

and I respectfully dissent.

away, in whole or in part, any clients or prospects of the Company . . . . 

J.A. 38 (emphasis added). Thus, the agreement itself treated the waiver

and release as a discrete provision, to which the non-solicitation clause

was simply appended. 

12 FRIZ v. J&H MARSH & MCLENNAN