UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLARD L. SLOAN, EUGENE J. 

WINNINGHAM, and JAMES L. 

KELLEY,

Plaintiffs,

v.

BORGWARNER INC., 

BORGWARNER DIVERSIFIED 

TRANSMISSION PRODUCTS 

INC., and BORGWARNER 

FLEXIBLE BENEFITS PLANS,

Defendants.

Case 2:09-cv-10918-PDB-MKM

U.S. District Judge Paul D. Borman

U.S. Mag. Judge Mona K. Majzoub

BORGWARNER’S NOTICE OF SUPPLEMENTAL AUTHORITY

BorgWarner Inc., BorgWarner Diversified Transmission Products Inc., and 

BorgWarner Flexible Benefits Plans—referred to collectively as “BorgWarner”—

hereby notify the Court of Witmer v. Acument Global Techs., Inc., 694 F.3d 774

(6th Cir. 2012) (attached), a supplemental authority relevant to BorgWarner’s 

pending motion for summary judgment. The motion is fully briefed and was 

argued before this Court on November 7, 2012.

BorgWarner has argued that it is entitled to summary judgment for either of 

two independent reasons. First, as a matter of law, Plaintiffs cannot prove an 

agreement between the UAW and BorgWarner to vest their retiree health benefits 

2:09-cv-10918-PDB-MKM Doc # 126 Filed 11/26/13 Pg 1 of 12 Pg ID 7382
2

because, among other things, the parties “agreed to disagree” about whether 

benefits were vested. (R. 95, Defs.’ Mot. 12–16.) Second, even if the benefits were 

vested, the changes BorgWarner made to Plaintiffs’ health benefits in May 2009

were reasonable and permissible under Reese v. CNH America LLC, 574 F.3d 315, 

324–27 (6th Cir. 2009). (R. 95, Defs.’ Mot. 16–19.) 

Witmer confirms the propriety of summary judgment in BorgWarner’s favor 

on the question of vesting. In Witmer, the Sixth Circuit affirmed a ruling by Judge 

Duggan that the retiree health benefits were not vested when the contract reserved 

the company’s right to alter or cancel the benefits even though it also provided for 

“continuous health insurance.” 694 F.3d at 775–76. Witmer makes clear that, even 

if the CBA contains features that may lead courts to find vesting (e.g., tying health 

benefits to pensions), those features do not evince an intent to vest when the CBA 

also disclaims vesting. Id. The same is true in this case, as the CBAs contain an 

agreement to disagree on vesting and a reservation of rights, which defeats any 

inference that BorgWarner may have agreed to vesting in other parts of the CBAs.

2:09-cv-10918-PDB-MKM Doc # 126 Filed 11/26/13 Pg 2 of 12 Pg ID 7383
3

Witmer provides further support for the entry of summary judgment in 

BorgWarner’s favor.

Dated: November 26, 2013

Elisa Angeli Palizzi (P52088)

(angeli@millercanfield.com)

Miller, Canfield, Paddock and Stone, 

P.L.C.

150 West Jefferson, Suite 2500

Detroit, Michigan 48226

313.496.7635

313.963.6420 fax

Respectfully submitted,

s/Joshua David Rogaczewski

Bobby R. Burchfield

(bburchfield@mwe.com)

Joshua David Rogaczewski 

(jrogaczewski@mwe.com)

McDermott Will & Emery LLP

600 13th Street, Northwest

Washington, D.C. 20005

202.756.8000 

202.756.8087 fax

Attorneys for BorgWarner Inc., BorgWarner Diversified Transmission Products 

Inc., and BorgWarner Flexible Benefits Plans

2:09-cv-10918-PDB-MKM Doc # 126 Filed 11/26/13 Pg 3 of 12 Pg ID 7384
CERTIFICATE OF SERVICE

I hereby certify that on November 26, 2013, I electronically filed the 

foregoing BorgWarner’s Notice of Supplemental Authority with the Clerk of the 

Court using the ECF system which will send notification of such filing to all ECF 

participants.

s/Joshua David Rogaczewski

Joshua David Rogaczewski

(jrogaczewski@mwe.com)

McDermott Will & Emery LLP

600 13th Street, Northwest

Washington, D.C. 20005

202.756.8000 

202.756.8087 fax

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774 694 FEDERAL REPORTER, 3d SERIES

the majority opinion ‘‘restrictions threaten

to reduce diversity and competition in the

marketplace of ideas.’’ Id. The majority

opinion undermines our ‘‘profound national

commitment to the principle that debate

on public issues should be uninhibited, robust, and wide open.’’ The majority opinion once again prefers the corporate or

establishment side of the case against the

iconoclastic individual on his soap box in

Hyde Park. I have no idea what Jolivette

might do or propose, but he should be

given his shot rather than be indentured to

the Republican Party because he used to

be a Republican.

,

Kenneth WITMER; Joseph Olex; Ralph

W. Williamson; Edward Pfannes;

Raymond Owens, Plaintiffs–Appellants,

v.

ACUMENT GLOBAL TECHNOLOGIES, INC.; Platinum Equity; Textron, Inc., Defendants–Appellees.

No. 11–1793.

United States Court of Appeals,

Sixth Circuit.

Argued: July 17, 2012.

Decided and Filed: Sept. 17, 2012.

Rehearing and Rehearing En Banc

Denied Oct. 22, 2012.*

Background: Retired employees filed action alleging that employer violated collective bargaining agreement (CBA) in violation of Employee Retirement Income

Security Act (ERISA) and Labor Management Relations Act (LMRA) in not

providing lifetime, unchangeable healthcare benefits. The United States District

Court for the Eastern District of Michigan, Patrick J. Duggan, J., 2011 WL

2111899, granted summary judgment for

employer. Employees appealed.

Holding: The Court of Appeals, Sutton,

Circuit Judge, held that employer did not

promise lifetime, unchangeable healthcare

benefits to its retired employees.

Affirmed.

David D. Dowd, Jr., United States District

Judge for the Northern District of Ohio,

sitting by designation, filed dissenting

opinion.

1. Labor and Employment O1280

Employer did not promise lifetime,

unchangeable healthcare benefits to its

retired employees under collective bargaining agreement (CBA), where employer expressly reserved right to modify or

terminate benefits.

2. Labor and Employment O549(1),

1280

A claim to entitlement to health benefits under a collective bargaining agreement (CBA) is a matter of contract, rather

than an issue under ERISA or the LMRA.

Labor Management Relations Act, 1947,

§ 301(a), 29 U.S.C.A. § 185(a); Employee

Retirement Income Security Act of 1974,

§ 2 et seq., 29 U.S.C.A. § 1001 et seq.

3. Labor and Employment O549(2),

1280

When retirement-income benefits

have not vested due to a reservation of

rights, language tying health care benefits

to retirement-income benefits demonstrates that the employer did not promise

lifetime, unchangeable benefits.

ARGUED: John R. Canzano, Klimist,

McKnight, Sale, McClow & Canzano, P.C.,

Southfield, Michigan, for Appellants.

Donald A. Van Suilichem, Van Suilichem &

Associates, P.C., Bloomfield Hills, Michigan, for Appellees. ON BRIEF: John R.

* Judge Dowd would grant rehearing for the reasons stated in his dissent.

2:09-cv-10918-PDB-MKM Doc # 126 Filed 11/26/13 Pg 5 of 12 Pg ID 7386
WITMER v. ACUMENT GLOBAL TECHNOLOGIES, INC. 775

Cite as 694 F.3d 774 (6th Cir. 2012)

Canzano, Klimist, McKnight, Sale, McClow

& Canzano, P.C., Southfield, Michigan, for

Appellants. Donald A. Van Suilichem,

Kelly A. Van Suilichem, Van Suilichem &

Associates, P.C., Bloomfield Hills, Michigan, for Appellees.

Before: SUTTON and GRIFFIN,

Circuit Judges; DOWD, District Judge.**

SUTTON, J., delivered the opinion of

the court in which, GRIFFIN, J., joined.

DOWD, D.J. (pp. 780–81), delivered a

separate dissenting opinion.

OPINION

SUTTON, Circuit Judge.

At stake is whether Acument Global

Technologies promised lifetime, unchangeable healthcare benefits to its retired employees. Because the company expressly

reserved the right to modify or terminate

benefits, we agree with the district court

that no such promise was made.

I.

A collective bargaining agreement governs the relationship between Acument

Global Technologies and its retired employees. Prior to 2008, the company paid

healthcare and life-insurance benefits to

qualified retirees. When Acument ended

these benefits in 2008, a class of sixty-four

retirees claimed that the company had violated the CBA in violation of the Employee

Retirement Income Security Act and the

Labor Management Relations Act. The

district court granted Acument’s motion

for summary judgment, and the plaintiffs

appealed.

II.

[1, 2] Although the plaintiffs bring this

claim under ERISA and the LMRA, their

entitlement to health benefits is ‘‘a matter

of contract.’’ Reese v. CNH America, LLC,

574 F.3d 315, 321 (6th Cir.2009). The

contractual question is this: Did the governing CBA create unalterable lifetime—

‘‘vested’’—healthcare and life-insurance

benefits? The contractual answer is no.

The CBA reserved Acument’s right to

modify or terminate future benefits.

The relevant language appears in ‘‘Appendix E’’ to the CBA, R.98–1 at 22–24,

reprinted as its own appendix to this

opinion. It starts by saying that ‘‘the

Company will revise the pension plan established in 1955, hereinafter referred to

as the ‘Plan,’ as follows.’’ It then contains five numbered paragraphs. The

first three deal with the use of an insurance company to manage the pension fund

and with the company’s lack of responsibility for the insurance company’s treatment of contributions and pay outs.

Paragraph four contains a reservation-ofrights clause. ‘‘The Company,’’ it says,

‘‘reserves the right to amend, modify, suspend, or terminate the Plan.’’ The fifth

paragraph introduces the benefits provided under the Plan, saying that the ‘‘[p]rincipal provisions of the pension plan are

shown below.’’ What follows are several

listed retirement benefits: retiree medical

coverage; retirement income; disability

income; and life insurance. In addition

to describing the benefits, this section of

the Appendix identifies the minimum

years of service needed to obtain each

benefit as well as other eligibility requirements and qualifications.

The key problem for plaintiffs is that the

same document that contains the promise

on which they rely (‘‘continuous health insurance’’ at retirement) contains a reservation-of-rights clause (‘‘reserv[ing] the right

** The Honorable David D. Dowd, Jr., United

States District Judge for the Northern District

of Ohio, sitting by designation.

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776 694 FEDERAL REPORTER, 3d SERIES

to amend TTT or terminate the Plan’’).

Their claim for benefits gets nowhere

without Appendix E, and yet Appendix E

broadly reserves the company’s right to

change the Plan benefits, using language

that is incompatible with a promise to create vested, unchangeable benefits. See

Maurer v. Joy Techs., Inc., 212 F.3d 907,

919 (6th Cir.2000).

The language and structure of Appendix

E show that the reservation-of-rights

clause applies to all benefits listed there,

not just to some of them. After describing

the company’s reservation of rights in

paragraph four, paragraph five says that

the ‘‘[p]rincipal provisions of the pension

plan are shown below.’’ Below that are

provisions for ‘‘retiree medical coverage’’

and ‘‘continued life insurance’’ alongside

retirement-income and disability-income

provisions. What Appendix E broadly

gives in the form of a wide range of retirement benefits it thus broadly reserves the

right to take away or modify.

[3] Nor is the mingling of healthcare

and retirement-income provisions an unusual thing to find in a CBA. In point of

fact, several of our decisions in this area

rely on the tying of eligibility for and

vesting of healthcare benefits to the same

requirements for retirement-income benefits. See Yolton v. El Paso Tenn. Pipeline

Co., 435 F.3d 571, 585 (6th Cir.2006); see

also Tackett v. M & G Polymers, USA,

LLC, 561 F.3d 478, 490 (6th Cir.2009);

Reese, 574 F.3d at 322–23; Noe v. PolyOne

Corp., 520 F.3d 548, 558–59 (6th Cir.2008);

McCoy v. Meridian Auto. Sys., Inc., 390

F.3d 417, 422 (6th Cir.2004); Golden v.

Kelsey–Hayes Co., 73 F.3d 648, 656–57

(6th Cir.1996). ‘‘[L]anguage tying health

care benefits’’ to retirement-income benefits, we have held, demonstrates the parties’ intent to create vested healthcare

benefits as well. Yolton, 435 F.3d at 584.

If that is true, so too is the opposite:

When retirement-income benefits have not

vested due to a reservation of rights, ‘‘language tying health care benefits’’ to retirement-income benefits demonstrates that

the employer did not promise lifetime, unchangeable benefits. Id. Just so here. To

rule otherwise would alter the neutral

premise of our decisions: by using tying as

a relevant benchmark when it shows vesting but treating it as an irrelevant benchmark when it shows lack of vesting. That

cannot be.

That particularly cannot be here. This

plan not only generally ties eligibility requirements for retirement-income benefits

and healthcare benefits together, but it

also explicitly provides for them in the

same plan and with the same reservationof-rights clause. More than that, Appendix

E provides that some funding for the two

benefits may come from the same source.

In providing that the company will reimburse the retiree for the monthly cost of

Medicare Part B as part of the ‘‘retiree

medical coverage,’’ the plan says that the

company will pay for the benefit ‘‘either

directly or from the pension fund.’’ The

company and the employees thus had one

more reason to provide all of these benefits under the same Appendix E umbrella:

Some of the healthcare benefits could be

funded by the pension fund.

The plaintiffs respond that the ‘‘pension

plan established in 1955’’ did not originally

cover retiree healthcare benefits. That is

true but irrelevant. When the company

and the union modified Appendix E to the

CBA in the 1970s, they added healthcare

benefits and did so by expanding the benefits provided under the pension plan—

making healthcare benefits a ‘‘[p]rincipal

provision of the pension plan.’’ Nothing

prevents the parties from defining ‘‘the

Plan’’ however they wish and above all

from changing it from time to time. That

the 1955 plan has been continuously revised is borne out by the preamble to

2:09-cv-10918-PDB-MKM Doc # 126 Filed 11/26/13 Pg 7 of 12 Pg ID 7388
WITMER v. ACUMENT GLOBAL TECHNOLOGIES, INC. 777

Cite as 694 F.3d 774 (6th Cir. 2012)

Appendix E, which explains that ‘‘the

Company will revise the pension plan established in 1955 TTT as follows.’’ (Emphasis added.)

The plaintiffs also claim that the ‘‘formal

pension plan documents’’ support their position. Br. at 27. Nothing in those documents covers retiree healthcare benefits,

they point out, meaning that ‘‘the Plan’’

mentioned in Appendix E must not do so

either. That is backwards. The ‘‘retirement income plan’’ documents do not define the scope of Appendix E; Appendix E

defines the scope of the relevant plan documents and how and when they can be

modified. Because Appendix E contains a

healthcare provision, the underlying

healthcare documents together with the

underlying retirement-income documents

provide a complete picture of the ‘‘pension

plan.’’ The retirement-income documents

tell half of the story, and the words of

Appendix E require us to consider all of it.

Observing that the healthcare provision

grants ‘‘[c]ontinous health insurance’’ to

retirees and their spouses ‘‘during the life

of the retiree,’’ plaintiffs reason that this

language creates vested, unchangeable

benefits. But this thinking chases the tail

of the inquiry. Surely a company can

promise ‘‘continuous health insurance’’ and

reserve the right to modify or end that

coverage if it becomes unaffordable. That

is all the reservation-of-rights clause does.

The continuous-coverage clause at all

events serves another purpose: It shows

that benefits do not automatically terminate when the CBA expires.

Plaintiffs’ invocation of durational layoff

benefits submits to the same answer. The

CBA gives laid-off employees healthcare

benefits ‘‘for one year.’’ R.98–1 at 16, 18.

Comparing this language to Appendix E’s

‘‘continuous health insurance’’ language,

the plaintiffs reason that the company

must have meant to make retiree medical

benefits survive indefinitely. Retiree

healthcare benefits, true enough, do not

automatically terminate after one year or

upon expiration of the CBA. But this adds

nothing to what we already know. Appendix E grants lifetime (‘‘continuous’’) healthcare to retirees, unless, as Appendix E

also provides, the company later modifies

or ends the benefit.

The plaintiffs make much of the fact that

the first three paragraphs of Appendix E

speak only in terms of traditional pension

(read retirement-income) benefits, suggesting (as they see it) that the reservation-of-rights clause in paragraph four applies only to traditional pension benefits.

That might be true in some settings, but it

is not true here. The heading the parties

gave to Appendix E itself contains this

traditional reference, as it is labeled in

bold in capital letters: ‘‘PENSION

PLAN.’’ Yet plaintiffs must agree that this

phrase covers non-traditional pension benefits—namely the retiree healthcare and

life-insurance benefits listed in Appendix

E. Otherwise, they have no claim. The

unvarnished reality is that the pension

plan, started as a traditional pension plan

but over time, and most especially through

the revision in the 1970s, the company and

the union extended the plan to other benefits. In contracts, as in statutes, it is not

unusual for language over time to cover

new technologies and new benefits not contemplated when the language first came

into being. See OfficeMax, Inc. v. United

States, 428 F.3d 583, 593 (6th Cir.2005).

Unless the parties provide otherwise in the

agreement, the original language and reservation of rights travels with the plan

through each revision. That is all that

happened.

Nor does it make a difference that Appendix E sometimes refers to the ‘‘pension

plan’’ and sometimes to the ‘‘Plan.’’ As the

first sentence of the document indicates,

the ‘‘pension plan’’ will be thereafter re2:09-cv-10918-PDB-MKM Doc # 126 Filed 11/26/13 Pg 8 of 12 Pg ID 7389
778 694 FEDERAL REPORTER, 3d SERIES

ferred to as the ‘‘Plan.’’ That there is a

later mention of ‘‘pension plan’’ in paragraph five, where the parties describe all

of the retirement benefits, does not create

a material ambiguity. The short-hand

term and the two-word phrase cover the

same thing. Indeed, there is no other

coherent way to read the document. Surely the parties did not mean the ‘‘Plan’’ to

refer only to traditional pension benefits

and the ‘‘pension plan’’ only to refer to

non-traditional pension benefits, thereby

omitting ‘‘pension’’ when they meant to

refer to pensions and adding ‘‘pension’’

when they meant to refer to other benefits.

All benefits are covered by both terms,

and the reservation of rights necessarily

applies to all of them.

Everything else raised by the plaintiffs—a declaration from Acument’s former

general counsel, CBA drafting history,

plant-closure agreements, retiree letters—

amounts to extrinsic evidence. Such extra-contractual intimations of meaning cannot alter the straightforward meaning of

the language found within the four corners

of Appendix E.

III.

For these reasons, we affirm.

APPENDIX ‘‘E’’

PENSION PLAN

Subject to approval of the Board of Directors and Stockholders, the Company

will revise the pension plan established in

1955, hereinafter referred to as the ‘‘Plan’’,

as follows:

1. An insurance Company shall be designated by the Company, and a contract

executed between the Company and such

insurance company, under the terms of

which, a pension fund shall be established

to receive and hold contributions payable

by the Company, interest, and other income, and to pay the pensions provided by

the Plan.

APPENDIX ‘‘E’’—Continued

2. The Company by payment of the contributions or amounts provided in the

above mentioned insurance company contract shall be relieved of any further liability, and pensions shall be payable only

from the insurance fund.

3. In the event of termination of the Plan,

there shall be no liability or obligation on

the part of the Company to make any

further contributions to the pension fund.

No liability for the payment of pension

benefits under the Plan shall be imposed

upon the Company, the Officers, Directors,

or Stockholders of the Company.

4. The Company reserves the right to

amend, modify, suspend, or terminate the

Plan by action of its Board of Directors

provided, however, that no such action

shall alter the Plan or its operation, except

as may be required by the Internal Revenue Service for the purpose of meeting

conditions for qualification and tax deductions under Sections 401, 404, and 501(a) of

the Internal Revenue Code in respect of

employees who are represented under a

collective bargaining agreement in contravention of the provisions of any such

agreement pertaining to pension benefits

as long as any such agreement is in effect.

5. Principal provisions of the pension

plan are shown below, but the individual

booklets which will be furnished each participant contain full information and will be

based on the contract entered into with the

insurance company.

Effective Date

January 5, 2000

ELIGIBILITY

All employees who will have completed five

(5) or more years of continuous credited

service at retirement.

2:09-cv-10918-PDB-MKM Doc # 126 Filed 11/26/13 Pg 9 of 12 Pg ID 7390
WITMER v. ACUMENT GLOBAL TECHNOLOGIES, INC. 779

Cite as 694 F.3d 774 (6th Cir. 2012)

APPENDIX ‘‘E’’—Continued

NORMAL RETIREMENT DATE

The normal retirement of all employees

will be age sixty-five (65). All employees

will be retired on the first day of the

month following their 70th birthday or later if required by Federal law.

EARLY RETIREMENT

If you have completed at least five (5)

years of credited service, you may retire

between age sixty (60) and sixty-five (65).

You may elect to receive:

(a) A pension at age sixty-five (65)

based on your credited service up to

your early retirement date.

(b) A pension beginning at your early

retirement date based on your credited

service up to that date but reduced in

accordance with the early retirement table as detailed in the master pension

contract as amended effective January 5,

2000 to provide a new reduction schedule as follows:

100% at age 62

85% at age 61

75% at age 60

RETIREE MEDICAL COVERAGE

Continuous health insurance and prescription drug coverage will be provided to

current retirees and those who elect early

retirement with fifteen (15) years of service at age sixty two (62) or twenty five

(25) years of service at age sixty (60) and

regular retirement with fifteen (15) years

of service who are sixty-five (65) years of

age or older. This coverage is provided

for the spouse of retirees only during the

life of the retiree, except as provided below. In order to receive this payment,

retirees may not be employed full time

when Medical/RX coverage is available.

Retirees will be required to apply for

Medicare parts (A) and (B). The Company will reimburse the retiree for the maximum of the current monthly cost of MediAPPENDIX ‘‘E’’—Continued

care part (B) coverage either directly or

from the pension fund at the option of the

company. Eligible employees hired after

12/31/99 will be ineligible to receive company funded retiree medical benefits, except

the reimbursement for Medicare part (B)

which will be capped at the monthly rate of

$45.50. Employees hired before 12/31/99

who retire will be covered for health insurance through (HMO), (PPO), SelectCare

Gold, Care Choice Gold or similar plan

available at the option of the Company.

Benefits will be coordinated with Medicare

and all benefits will cease upon death of

retiree, unless retiree’s spouse is under 65

years of age, in which case benefits for the

spouse and dependents children of the retiree, will not cease until spouse remarries

or reaches age 65.

RETIREMENT INCOME

Pensions will be in the amounts set forth

below per month for each year of credited

service at retirement with a maximum of

thirty-eight (38) years. Current retirees

1985 through 1987 thirty-seven (37) years

maximum 1980 through 1984 thirty-five

(35) years maximum, 1974 through 81979

thirty-three (33) years maximum, 1973 and

prior thirty (30) years maximum.

An employee retiring with less than five

(5) years of credited service is not eligible

for benefits.

BENEFIT effective January 5, 2000

$32.43 times each credited service year 0

thru 9

Plus

$34.75 times each credited service year

9.1 thru 14

Plus

$42.75 times each credited service year

14.1 thru 19

Plus

$43.20 times each credited service year

19.1 thru 24

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780 694 FEDERAL REPORTER, 3d SERIES

APPENDIX ‘‘E’’—Continued

Plus

$43.2 times each credited service year

24.1 thru 38

PAST RETIREE BENEFIT

*Retirees’ increased benefits if applicable

as set forth in the company proposal will

be payable as soon as the program can be

revised but not later than May 1, 2000.

VESTED PENSION RIGHTS

Minimum continuous Credited Service–5

years

DISABILITY INCOME

Employees with at least fifteen (15) years

of service who are between the ages of 40

and 65 will be eligible for a pension of

$30.00 per month for each year of service

in the event of total and permanent disability. At age 65, the employee will receive the regular retirement income based

on service at disability date. The maximum payment shall be 25 years of service,

less workmen’s compensation benefits or

any other disability payments as provided

in the master pension contract, exclusive of

social security disability payments. Subject to Internal Revenue Service approval.

No matter respecting the plan or any differences arising hereunder shall be subject

to the grievance procedure established in

the collective bargaining agreement between the Company and the Union.

CONTINUED LIFE INSURANCE

Continued life insurance shall be provided

for employees who are retired under the

pension plan in the amount of $12,000.00.

Retired employees will be permitted to

purchase additional insurance by buying

an individual policy up to a maximum of

$38,000 currently without a medical examination at the insurance company’s rates.

DOWD, District Judge, dissenting.

Whether the language of a contract is

ambiguous is a question of law for the

court. Appendix E is at the core of that

question in this case.

Appendix E begins by creating a defined

term—‘‘Plan’’—and uses that defined term

consistently in paragraphs 1–4, which includes the reservation of rights clause.

Paragraph 5 then switches to the generic

undefined term—‘‘pension plan’’—below

which is listed the ‘‘principal provisions of

the pension plan.’’

Following numbered paragraph 5 are

three pages of titled, but unnumbered sections. Among those sections is a provision

for ‘‘RETIREE MEDICAL COVERAGE,’’ which provides ‘‘[c]ontinuous health

insurance and prescription drug coverage

will be provided to current retirees TTT

This coverage is provided for the spouse

retirees only during the life of the retiree,

except as provided belowTTTT (Benefits

will be coordinated with Medicare and all

benefits will cease upon death of retiree,

unless retiree’s spouse is under 65 years of

age, in which case benefits for the spouse

and dependents [sic] children of the retiree, will not cease until spouse remarries or

reaches age 65.[) ]’’

Also following paragraph 5 are two unnumbered sections addressing eligibility

and vesting. The vesting section is titled

‘‘VESTED PENSION RIGHTS,’’ and requires minimum continuous credited service of 5 years.

The language of Appendix E is poorly

drafted and not a model of clarity. At

the summary judgment stage, ambiguities

and inferences are to be drawn in favor of

the nonmoving party. In this judge’s

view, when that standard is applied to

Appendix E, its references to ‘‘Plan’’ and

‘‘pension plan’’ and ‘‘continuous health insurance and prescription drug coverage

2:09-cv-10918-PDB-MKM Doc # 126 Filed 11/26/13 Pg 11 of 12 Pg ID 7392
GOODYEAR TIRE & RUBBER v. NATIONAL UNION FIRE INS. 781

Cite as 694 F.3d 781 (6th Cir. 2012)

[for] current retirees and TTT spouses of

retirees TTT’’ and ‘‘vested pension rights’’

are subject to more than one plausible interpretation on the question of whether

the benefits at issue are vested or subject

to termination.

As a consequence, I would remand this

case to the district court for consideration

of extrinsic evidence to determine the intent of the parties on the issue of vesting.

For these reasons, I respectfully dissent.

,

GOODYEAR TIRE AND RUBBER

COMPANY, Plaintiff–

Appellant,

v.

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Defendant,

Federal Insurance Company,

Defendant–Appellee.

No. 11–4145.

United States Court of Appeals,

Sixth Circuit.

Argued: July 17, 2012.

Decided and Filed: Sept. 17, 2012.

Background: Corporation brought action

against first insurer and second insurer,

alleging breach of directors and officers

liability policies, and seeking reimbursement of legal and accounting costs incurred in defending numerous securities

class action and derivative lawsuits and

Securities and Exchange Commission

(SEC) investigation. Following corporation’s settlement with second insurer, the

United States District Court for the

Northern District of Ohio, Christopher A.

Boyko, J., 2011 WL 5024823, entered summary judgment for first insurer. Corporation appealed.

Holding: The Court of Appeals, Kethledge, Circuit Judge, held that policy with

first insurer did not provide coverage for

reimbursement of legal and accounting

costs incurred by corporation, absent second insurer’s full payment of policy limit.

Affirmed.

1. Insurance O1806, 1807

Under Ohio law, courts construe insurance agreements in accordance with the

same rules as other written contracts; that

means courts will not rewrite the contract

when the intent of the parties is evident,

i.e., if the language of the policy’s provisions is clear and unambiguous.

2. Insurance O2396

Under Ohio law, terms of exhaustion

clause in corporation’s excess insurance

policy with insurer, which stated that coverage would attach only after second insurer had paid full amount of second insurer’s policy limit of $15 million, did not

provide coverage for reimbursement of legal and accounting costs incurred by corporation in defending numerous securities

class action and derivative lawsuits, absent

second insurer’s full payment of $15 million.

ARGUED: Mark J. Andreini, Jones

Day, Cleveland, Ohio, for Appellant. Daniel J. Standish, Wiley Rein LLP, Washington, D.C., for Appellee. ON BRIEF:

Mark J. Andreini, Jones Day, Cleveland,

Ohio, for Appellant. Daniel J. Standish,

Cara Tseng Duffield, M. Addison Draper,

Wiley Rein LLP, Washington, D.C., for

Appellee. Paul A. Rose, Lucas M. Blower,

Brouse McDowell, L.P.A., Akron, Ohio,

Kevin Drummond Eiber, Caroline L.

Marks, Brouse McDowell, L.P.A., Cleveland, Ohio, for Amici Curiae.

2:09-cv-10918-PDB-MKM Doc # 126 Filed 11/26/13 Pg 12 of 12 Pg ID 7393