United States Court of Appeals,

Fifth Circuit.

No. 94-30512

Summary Calendar.

James F. WILLIAMS, Plaintiff-Appellant,

v.

PLUMBERS & STEAMFITTERS LOCAL 60 PENSION PLAN, Defendant-Appellee.

April 5, 1995.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before DUHÉ, WIENER and STEWART, Circuit Judges.

DUHÉ, Circuit Judge.

James Williams appeals the district court's summary judgment in favor of the Plumbers and

Steamfitters Local 60 Pension Plan (the Plan) denying Appellant's claims for Plan benefits. We affirm.

Appellant Williams participated in the Plan which provides pension, disabilit y, and death

benefits to eligible participants. From 1978 until 1985, Williams earned 6.5 years of service credit.

I n 1986, when he was no longer earning service credits, Williams was injured in an autom ob ile

accident, but he did not claim Plan benefits. In 1987, the Trustees amended the Plan to increase the

minimum service credits required to receive disabilit y benefits from 5 to 10 years. Notice of the 1987

amendment was mailed to all participants, and it was attached to the Summary of Plan Descriptions

("SPD") distributed to new participants.

Williams was injured in a second automobile accident in 1988. Thereafter, he applied for

disabilit y benefits from the Social Security Adm i nistration ("SSA") which determined that he was

disabled in 1988. In 1990 Williams applied to the Plan for disability benefits. The Plan denied his

application because, although he was disabled in 1988, he did not have the required 10 years of

service credits.

Williams sued the Plan contending that t h e terms of the SPD, which did not reflect the

amendment, governed over the terms of the Plan. He also claims that his interest in the Plan vestedin 1986, when he became disabled, and that the Trustees could not thereafter eliminate his interest.

The district court granted summary judgment in favor of the Plan because: (1) The disability

benefit provision of the Plan was an "employee w elfare benefit plan" rather than an "employe e

pension benefit plan" and, consequently, it was not subject to the vesting, accrual, or nonforfeiture

provisions of ERISA. (2) Regardless o f t he plan type, Williams' interest in the disability benefits

could not accrue until 1988, the year that the Trustees determined Williams to be disabled. (3) The

Trustees' disabilit

y determination w a s not an abuse of discretion. (4) The court rejected Williams'

argument that the terms of the unmodified SPD controlled, and determined that the means employed

by the Plan to notify its participants of the amendment comported with ERISA and its regulations.

Williams appealed.

DISCUSSION:

Williams attacks the validity of the 1987 amendment increasing the minimum required service

credits from 5 years to 10 years on several grounds.

a. Does it violate ERISA's anti-cutback provision?

Williams first argues that ERISA's § 204(g) prohibits the 1987 amendment because the

amendment decreased his interest in a retirement-type subsidy. He, however, does not di rectl y

challenge the dist rict court's finding that the disability plan was an employee welfare benefit plan.

Because ERISA's vesting, accrual, and nonforfeiture provisions do not apply to an employee welfare

benefit plan, § 204(g) is not applicable. H arms v. Cavenham Forest Indus., 984 F.2d 686, 691 n. 6

(5th Cir.), cert. denied,

--- U.S.

----, 114 S.Ct. 382, 126 L.Ed.2d 331 (1993); s ee 29 U.S.C. §

1051(1).

Even if § 204(g) applied, Williams' argument fails. Section 204(g) prohibits plan amendments

that eliminat e or reduce inter alia, retirement-type subsidies or early retirement benefits. 29 U.S.C.

§ 1054(g). Although the regulations do not define a "retirement-type subsidy," the legislative history

makes clear that the term does not include disability benefits:

The committee intends that under these regulations, a subsidy that continues after retirement

is generally to be considered a retirement- t ype subsidy. The committee expects, however,

that a qualified disability benefit, a medical benefit, a social security supplement, a death

benefit (including life insuranc e), o r a plan shutdown benefit (that does not continue afterretirement age) w ill not be considered a retirement-type subsidy.

S.Rep. No. 575, 98th Cong., 2d Sess. 30, reprinted in 1984 U.S.C.C.A.N. 2547, 2576, q uoted in

Ross v. Pension Plan for Hourly Employees of SKF Indus., Inc., 847 F.2d 329, 333-34 (6th

Cir.1988) (emphasis added). S ee also Harms, 984 F.2d at 692 ("The [legislative] history exempts

qu alified disability, medical, and death benefits ... from the definition of "retirement-type"

subsidy...."). Accordingly, the Plan's disabilit y benefits cannot be considered a "retirement-type

subsidy" protected by § 204(g) of ERISA.

Williams nevertheless argues, relying on Harms, that these dis abilit y benefits he seeks are

retirement-type subsidies because they are payable for life and calculated in a manner similar to

retirement subsidies in general. As the Sixth Circuit did in R oss, we rely upon the legislative history

to conclude that the disability benefits Appellant seeks are not a "retirement-type subsidy" under §

204(g). Ross, 847 F.2d at 334.

Williams also contends that the benefits are "an early retirement benefit" and, thus, protected

under § 204(g), and alternatively, t hat t he Plan by its own terms views the disability benefits as a

pension benefit. Because Appellant raises these arguments for the first time o n appeal, we do not

address them. T

opalian v. Ehrman, 954 F.2d 1125, 1131-32 & n. 10 (5th Cir.), cert. denied,

--- U.S.

----, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992) (party challenging the grant of summary judgment may not

advance new theories or raise new issues on appeal).

b. Was the 1987 amendment properly noticed?

Appellant argues that the Plan failed to comply with ERISA's notice provisions therefore the

unmodified SPD should govern over the contradictory Plan provisions.

The SPD must be "sufficiently accurate and compr ehensive to reasonably apprise" plan

participants of their rights and obligations under the Plan. 29 U.S.C. § 1022(a)(1); see Hansen v.

C ontinental Ins. Co., 940 F.2d 971, 981 (5th Cir.1991). A summary of material modificat io ns

(SMM) to the plan must be provided to all plan participants in a t imely manner. 29 U.S.C. §§

1022(a)(1) and 1024(b)(1).

Willi ams co nt ends that the Plan failed to indicate in its letter to plan participants that the1 Williams complains for the first time on appeal that the Plan did not establish the address used

to contact participants. We do not address this new issue. Topalian, 954 F.2d at 1131-32 & n.

10. notification "should be read and retained for future reference" an d t hat it contains "important

information about rights under the plan." 29 C.F.R. § 2520.104b-1(b)(1). Williams misinterprets the

regulation. Its requirements apply only when the notice of t he mo dification is disseminated as a

special insert in a periodical distributed to the employees, such as a union newsletter. Id.

Williams also attacks the Plan's failure to prove that Williams received the letter. 1 There is

no requirement that the Plan prove actual no t ice o f an amendment absent a showing of active

concealment or some significant reliance upon, or prejudice resulting from the lack of notice. G odwin

v. Sun Life Assurance Co., 980 F.2d 323, 328 (5th Cir.1992). The plan administrator need only use

whatever means are "reasonably calculated to ensure actual receipt of the mate rial." 29 C.F.R. §

2520.104b-1(b)(1). The plan administrator may send the SMM by mail. I d. The Plan advisor stated,

by sworn affidavit, that he prepared and had mailed a letter to all Plan participants not ifying them of

the amendment requirement and that a copy of the letter was attached to SPDs distributed to new

Plan participants.

Williams does not allege concealment or significant reliance. He attempts to distinguish

Godwin on the basis that the plan administrator in Godwin distributed a revised SPD rather than a

letter to update plan participants as was done here. This distinction is immaterial. Neither Godwin

no r Williams contend that they received actual notice; because neither claims to have received the

notice, the particular means used to inform plan participants is unimportant.

Williams' reliance on Hansen is also misplaced. In H ansen, the court held that statements

in a SPD are binding and will govern if the statements in the SPD conflict with the Plan. H ansen, 940

F.2d at 981. The SPD in Hansen conflicted with the terms of the Plan. I d. at 980-81. In contrast,

the SPD in the instant case accurately summarized the Plan prior to t he 1987 amendment. The

"conflict" arose only after the Plan was amended and t he SPD was not revised and reissued. But,

because the SPD was properly supplemented by a SMM, there is no conflict between t he

supplemented SPD and the Plan.2 Williams also argues for the first time on appeal that the SSA determination that Williams'

date of disability was 1988 did not preclude a finding that Williams was disabled before 1988. We

do not address this claim. Topalian, 954 F.2d at 1131-32 & n. 10.

3 The 1987 Plan governs because it was properly amended as discussed above. Appellant also cite s t he Plan's failure to file the SMM with the Department of Labor as

required by 29 U.S.C. §§ 1024(a)(1)(D) and 1022(a)(2). Williams complains that as a result of the

Plan's failure, h e co uld no t discover the 1987 amendment by examining the Department files.

Williams does not allege that he examined the files and thereaf t er relied upon the absence of the

SMM. Under the circumstances, the Plan's omission was not significant.

c. Was the 1987 amendment formally adopted?

Appellant claims that the amendment was not effective because it was never formally adopted

into the Plan. As the Third Circuit explained in Confer v. Custom Eng'g Co., 952 F.2d 41, 43 (3d

Cir.1991), only an amendment executed in accordance with the Plan's own procedures and properly

noticed could change the Plan. Id. at 43.

The Plan, effective when the amendment w a s adopted, provided that the Trustees could

amend the Plan at any time, subject to ERISA and IRS limitations not at issue here. The amendment

was presented and approved during a meeting of the Trustees. A written notice of the change was

mailed to Plan participants. Accordingly, Williams' assertion that the amendment was not formally

adopted is without merit.

Appellant also argu es t hat he was disabled in 1986, and that, therefore, the district court

erred when it upheld the Trustees' contrary determination because the Trustees abused their discretion

by neglecting the only medical evidence offered. 2

We review de novo. Sw eatman v. Commercial Union Ins. Co., 39 F.3d 594, 601 (5th

Cir.1994).

The 1987 Plan 3 required the Trus t ees t o determine whether an employee is totally and

permanently disabled and provided that the Trustees "shall accept as evidence" a SSA determination

that the employe e is disabled. Given the SSA determination of Williams disability, the weight

afforded that determination under the Plan, and Williams' delay in filing his claim until after the second4 Williams argues that the 1987 amendment was ineffective because amendments may only have

a prospective effect. Because Williams was disabled in 1988, the Trustees did not apply the 1987

amendment retroactively. auto accident, it was not unreasonable or an abu se o f t he Trustees' discretion to find the date of

disability to be 1988. 4

Williams also seeks prejudgment interest. Because the district court properly

granted

summary judgment against Williams this issue is moot.

AFFIRMED.