PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LOUISE MULLINS,

Plaintiff-Appellant,

v.

BLUE CROSS & BLUE SHIELD OF

VIRGINIA, INCORPORATED,

Defendant & Third-Party Plaintiff- No. 94-2121

Appellee,

v.

RANDOM SUPPLY COMPANY,

INCORPORATED,

Third-Party Defendant.

Appeal from the United States District Court

for the Western District of Virginia, at Big Stone Gap.

Samuel G. Wilson, District Judge.

(CA-93-11-B)

Argued: June 5, 1995

Decided: March 19, 1996

Before WILKINSON, Chief Judge, and WIDENER and

MICHAEL, Circuit Judges.

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Affirmed by published opinion. Judge Widener wrote the opinion, in

which Chief Judge Wilkinson and Judge Michael joined.

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COUNSEL

ARGUED: Carl E. McAfee, MCAFEE, BLEDSOE & ASSOCIATES, P.C., Norton, Virginia, for Appellant. Charles Richard
Cranwell, CRANWELL & MOORE, Roanoke, Virginia, for Appellees. ON BRIEF: Richard C. Titus, Cary, North Carolina, for Appellees.

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OPINION

WIDENER, Circuit Judge:

Plaintiff Louise Mullins appeals from an adverse summary judgment on her claim for coverage under a medical insurance policy governed by the Employee Retirement Income Security Act, 29 U.S.C.

§§ 1001-1461 (ERISA). For the following reasons, we affirm.

Miss Mullins was employed by Better Business Services, Inc. from

May 1986 to February 1, 1991. At all relevant times, Miss Mullins

was on the enrollment list of, and premiums were timely paid by or

on behalf of Miss Mullins with respect to, a group health insurance

policy issued by defendant Blue Cross & Blue Shield of Virginia

under an ERISA plan, the Random Supply Employee Benefit Plan, of

which Random Supply Company, Inc. was the Plan Sponsor and

Administrator. Miss Mullins was never employed by Random Supply.* The Comprehensive Group Contract governing participation in

the Random Supply Plan states that, "[u]nless otherwise agreed in

writing by the Plan, a person may not be an Eligible Person unless he

is: 1. A full-time active employee of the Contract Holder [Random

Supply], or a related company of the Contract Holder (at least 51%

common ownership) . . . ." There is no evidence that Random Supply

and Better Business Services ever had at least 51% common ownership.

Miss Mullins contracted hepatitis in November 1990. After a preauthorization was obtained from Blue Cross by the Presbyterian University Hospital, Miss Mullins underwent liver-transplant surgery in

December 1991. Blue Cross denied coverage of the medical costs

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*There is evidence that Random Supply and Better Business Services

were closely related companies, but Miss Mullins does not dispute that

she was never employed by Random Supply. Mullins Brf., p. 5.

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incurred by Miss Mullins in connection with this surgery, and Miss

Mullins filed suit in a Virginia state court in December 1992. Blue

Cross removed the action to the district court and filed its third party

complaint against Random Supply as a third-party defendant.

Blue Cross and Random Supply moved for summary judgment,

and the district court granted Blue Cross's motion, dismissing the

third-party action with Blue Cross's consent. See Mullins v. Blue

Cross & Blue Shield of Virginia, Inc., 859 F. Supp. 206, 207 & n.2

(W.D. Va. 1994). The district court held that Miss Mullins had no

standing to sue as an ERISA participant under Madonia v. Blue Cross

& Blue Shield of Virginia, 11 F.3d 444 (4th Cir. 1993). See 29 U.S.C.

§§ 1132(a)(1) ("A civil action may be brought . . . by a participant or

beneficiary . . . ."), 1002(7) (defining a participant as "any employee

or former employee of an employer . . . who is or may become eligible to receive a benefit of any type from an employee benefit plan

which covers employees of such employer . . . ."), because she was

never an employee of Random Supply, see Mullins , 859 F. Supp. at

207, and because principles of equitable estoppel do not apply to vary

the written terms of an ERISA plan by virtue of this court's holding

in Coleman v. Nationwide Life Insurance Co., 969 F.2d 54, 58-60 (4th

Cir. 1992), cert. denied, 61 U.S.L.W. 3446, 3495, 3498 (U.S. Jan. 19,

1993). See Mullins, 859 F. Supp. at 208.

We agree with the district court that Miss Mullins is not a participant in the Random Supply Plan because she is neither a present nor

a former employee of Random Supply. We also agree that we should

apply our holding in Coleman that "[e]quitable estoppel . . . [has] not

been permitted to vary the written terms of a plan," 969 F.2d at 59,

and that the terms of the Comprehensive Group Contract governing

the Random Supply Plan are clear regarding plan eligibility. Thus,

Miss Mullins plainly was not eligible for participation in the Random

Supply Plan, and the district court properly granted summary judgment to Blue Cross on Miss Mullins' ERISA claim.

The judgment of the district court is accordingly

AFFIRMED.

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