UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLARD L. SLOAN, EUGENE J.

WINNINGHAM, JAMES L. KELLEY,

on behalf of themselves and a similarly Case No. 09-cv-10918

situated class,

Paul D. Borman

Plaintiffs, United States District Judge

v.

BORGWARNER, INC., BORGWARNER

FLEXIBLE BENEFITS PLANS and

BORGWARNER DIVERSIFIED 

TRANSMISSION PRODUCTS, INC.,

Defendants.

____________________________________/

OPINION AND ORDER

(1) DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

 ON THE ISSUE OF VESTING AND

(2) DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

ON THE ISSUE OF VESTING

This matter is before the Court on the parties’ cross-motions for summary judgment. 

Defendants filed a Motion for Summary Judgment with Appendices (ECF Nos. 95-101), Plaintiffs

filed a response (ECF No. 112) and Defendants filed a Reply with Appendix (ECF Nos. 113-114). 

Plaintiffs filed a Motion for Summary Judgment as to Liability with Appendices (ECF Nos. 102-

105), Defendants filed a Response with Appendices (ECF Nos. 108-111) and Plaintiffs filed a Reply

(ECF No. 115). The Court heard oral argument on November 7, 2012. Following the hearing, the

parties were provided the opportunity to consider whether or not they wished the Court to proceed

first with a determination as to the reasonableness of Defendants’ changes to Plaintiffs’ health care

benefits before addressing the issue of whether or not Plaintiffs’ health care benefits were vested. 

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After learning on August 22, 2013, that both parties did not agree to have the Court proceed with

the reasonableness determination and hold the vesting issue in abeyance, the Court agreed to issue

its ruling on vesting, but permitted the parties to update or supplement their original summary

judgment briefs with supplemental briefs, which both parties filed with the Court on September 16,

2013. (ECF Nos. 124, 125.) In addition, on November 26, 2013, Defendants filed a Notice of

Supplemental Authority. (ECF No. 126.) 

Having considered all of the above materials, and having heard oral argument, the Court,

viewing the facts in the light most favorable to the non-moving party on these cross-motions for

summary judgment, denies both parties’ motions for summary judgment. “‘For cross-motions for

summary judgment, we must evaluate each motion on its own merits and view all facts and

inferences in the light most favorable to the non-moving party.’” Spectrum Health Continuing Care

Grp. v. Anna Marie Bowling Irrevocable Trust, 410 F.3d 304, 309 (6th Cir. 2005) (quoting Beck v.

City of Cleveland, 390 F.3d 912, 917 (6th Cir. 2004)). “‘The filing of cross-motions for summary

judgment does not necessarily mean that an award of summary judgment is appropriate.’” Id. 

(alteration omitted). Accordingly, this case shall proceed to trial on Plaintiffs’ claim that their

healthcare benefits were lifetime vested.1

INTRODUCTION

This action involves a contractual claim to lifetime inalterable healthcare benefits for a

1 The parties also filed supplemental authority relating to the issue, relevant only if this Court finds

that Plaintiffs’ health care benefits were vested, of whether those benefits could nonetheless be

unilaterally altered. Because the Court concludes that genuine issues of material fact exist on the

underlying issue of vesting, it does not address this secondary issue at this stage of the proceedings.

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certified class of Borg Warner2

 retirees and their spouses. This Court previously certified a class

of 1,750 retirees and surviving spouses of retirees who retired from Borg Warner on or after October

27, 1989 and before February 23, 2009, who had been represented by the International Union,

United Automobile, Aerospace & Agricultural Implement Workers of America in collective

bargaining. (ECF No. 56, Opinion and Order Granting Class Certification.) Presently before the

Court are the parties’ cross-motions for summary judgment on the class members’ claimed

contractual right to vested (lifetime inalterable) healthcare benefits. In this Opinion and Order, the

Court addresses the issue of whether Plaintiffs’ healthcare benefits were vested for life or whether

the benefits could be terminated at the expiration of each collectively bargained healthcare

agreement.3

I. BACKGROUND

Borg Warner manufactured transfer cases for four wheel drive vehicles for the automotive

industry at its plant in Muncie, Indiana beginning as early as 1908. (ECF No. 100, Defs.’ Mot. Ex.

24, Deposition of Richard Nuerge, October 25, 2011, 9-10.) The Muncie Plant hourly workers were

represented by the International Union and Local 287 (“UAW”). Id. As relevant to this litigation,

Borg Warner provided health care benefits to its employees through a series of Collective

Bargaining Agreements (“CBAs”) and Health Insurance Agreements (“HIAs”) for the years 1989-

2009. The health benefits program consists of the CBAs (ECF No. 97, Defs.’ Mot. Ex. 15, May 4,

2 “Borg Warner” refers to the Defendants, BorgWarner, Inc., BorgWarner Diversified Transmission

Products, Inc. and BorgWarner Flexible Benefits Plans.

3 The parties’ summary judgment motions also address the issue of whether, assuming that the

benefits were vested, Defendants’ alteration of those benefits is reasonably commensurate with the

previously provided benefits. Only the issue of vesting is addressed in this Opinion and Order.

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2012 Declaration of Anthony Behrman, Exs. 1-5) and the HIAs that supplement the CBAs (ECF No.

96, Defs.’ Mot. Exs. 1, 4, 5.) In addition, on September 27, 1990, Borg Warner and the UAW

executed an Agreement to modify and extend the 1989 CBA, and on November 30, 1992, Borg

Warner and the UAW executed an Agreement to modify and extend the 1989 HIA and the 1990

extension. (ECF No. 96, Defs.’ Mot. Exs. 2, 3.) 

Although the Plaintiffs retired under different CBAs and HIAs, the parties appear to agree

that the relevant language concerning health care coverage was consistent among each of the CBAs

and HIAs. The parties also do not appear to contest the applicability of the provisions of any of the

HIAs at any point in time, despite the fact that some of the HIAs were in fact executed long after the

parties began to perform according to their terms. 

The instant dispute began with the negotiation of the 1989 CBA, which brought an end to

a seven-week strike, a labor dispute that the parties agree was driven largely by disputes related to

rising health care costs. A significant factor driving Borg Warner’s desire to reduce its retiree

benefit liabilities was a new set of accounting standards promulgated by the Financial Accounting

Standards Board (“FASB”) that required for the first time that publicly traded companies, like Borg

Warner, report their unfunded contractual benefit commitments as a liability. (ECF No. 98, Defs.’

Mot. Ex. 19, Deposition of Laura Champagne, January 13, 2012, 29-31.) These new FASB

regulations created an enormous balance sheet liability for Borg Warner, and for the majority of

publicly traded companies, threatening their ability to attract new business and to obtain financing.4

4 See Wood v. Detroit Diesel Corp., 607 F.3d 427, 428-29 (6th Cir. 2010) (noting the FASB

regulations “required companies to recognize a liability for the present value of all of their future

payments for retiree health care expenditures immediately, rather than including these costs on the

company's balance sheet on a pay-as-you-go basis,” and if implemented without a change to Detroit

Diesel’s CBA “could have bankrupted the company by rendering it unable to obtain capital.”). 

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During the relevant time frame, 1989-2009, the parties operated under a series of collective

bargaining agreements which varied to some degree but each of which contained similar language

relevant to the vesting issue. Article Sixteen of the 1989 CBA, in language that continued

unchanged (except as to the relevant termination date) through each of the successive agreements,

dictates the duration of the CBA and provides as follows:

This agreement shall remain in full force and effent [sic] until September 12, 1992

and thereafter from year to year, unless either party shall give notice in writing at

least sixty (60) days in advance of September 12, 1992, or any anniversary thereafter

of its desire to terminate the Agreement.

ECF No. 97, Defs.’ Mot. Ex. 15, Ex. 1, 1989 CBA, Article Sixteen, p. 142.

Similarly, in language that remained unchanged in pertinent part, Article VIII of the 1989

HIA, executed by Borg Warner and the UAW in conjunction with the 1989 CBA, defines eligibility

for retiree health care benefits and provides in pertinent part that:

Section 1. Presently retired employees and an employee who retires under the

Retirement Income Program Agreement on or after December 1, 1989, . . . shall be

entitled to the life insurance, Managed Care, basic hospitalization/surgical/medical,

prescription drug, major medical, substance abuse, vision, human organ/tissue

transplant, and Medical Case Management coverages and procedures, as set forth in

Exhibits A, C, D, E, F and H. Art. VIII, Sec. 1(A).

Section 2. An employee who terminates employment with the Company on or after

January 1, 1991 while participating in the Muncie Retirement Savings Plan shall be

entitled to the . . . coverages and procedures as set forth in Exhibits A, C, D, E, F and

H. Art. VIII, Sec. 1(B).

Employees presently or hereafter retired under the Total and Permanent Disability

provisions of the Retirement Income Program Agreement . . . shall be entitled to the

coverages and procedures set forth in Exhibits A, C, D, E, F and H. Art. VIII, Sec.

2.

Section 3. The Company will provide the medical coverages and procedures set

forth under the provisions of Exhibits A, C, D, E, F and H and will pay the monthly

premium for such coverage for:

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A. A surviving spouse and the eligible dependent(s) of a retired employee . . . who

is receiving a monthly retirement benefits under Article Eight, Section 3, of the

Retirement Income Program Agreement, and 

B. An eligible surviving spouse . . . and the eligible dependents of an employee who

terminated employment with the Company while participating in the Muncie

Retirement Savings Plan . . . 

C. The surviving spouse and the eligible dependents of an employee who was

eligible to retire at the time of death under . . . the Retirement Income Program

Agreement or . . . the Muncie Retirement Savings Plan . . . 

The medical coverages and procedures provided under this Article VIII, Section 3

shall terminate if the surviving spouse or Eligible surviving spouse remarries.

(ECF No. 96, Defs.’ Mot. Ex. 1, 1989 HIA, pp. 7-9.)

Also surviving through each iteration of the parties’ health care agreements (with modified

relevant dates), Article XII of the 1989 HIA contains the following language:

This Agreement and the Plan embodied herein shall become effective as of October

27, 1989, and continue in full force and effect until September 12, 1992. During the

term of this Agreement neither the Company nor the Union shall demand any change

in this Agreement nor shall either party be required to bargain with respect to this

Agreement . . . . On September 12, 1992 this Agreement may be terminated,

modified, changed or continued in the same manner as provided in Article Sixteen

of the aforesaid Collective Bargaining Agreement between the parties hereto dated

October 27, 1989.

ECF No. 96, Defs.’ Mot., Ex. 1, October 27, 1989 HIA 15.

In Exhibit A to the 1989 HIA, in language that remained unchanged through each iteration

of the HIAs from 1989 through 2009, the “Schedule of Benefits,” Section II setting forth “Basic

Hospital, Surgical and Medical Benefits,” the parties agreed, specifically with reference to retiree

health care benefits, as follows:

Termination of Coverages Provided Under Exhibit A: The coverages provided under

this Exhibit A terminate on the date that:

(a) the eligible active employee leaves the employment of the Company (see the

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Agreement and Appendix for the applicable continuation provisions regarding layoff,

disability, retirement, or COBRA);

(b) the eligible active employee/dependent or the eligible retiree/dependent is no

longer eligible for coverage;

(c) the required monthly premium contribution, if applicable is not made;

(d) the eligible active employee or eligible retiree dies (see the Agreement or

Appendix A for the applicable continuation provisions, if any); or

(e) the Agreement is terminated.

(ECF No. 96, Defs.’ Mot. Ex. 1, 1989 HIA, Appendix A, Ex. A, § 2(M)(2), p. 65-66.)

The Summary Description of the Plan of Insurance, included within the consecutivelypaginated 1989 HIA and before the signature page on that document, and remaining in each

successive version of the HIA, states as follows:

FUTURE OF THE PLAN

Although Borg-Warner Automotive Diversified Transmission Products Corporation,

Muncie Plant expects and intends to continue the Plan indefinitely, it reserves the

right to modify, amend, suspend or terminate the Plan or the Group Policies therein

in accordance with the provisions of the Health Insurance Agreement.

Id. at p. 121.

Both the 1989 CBA and HIA were expressly set to terminate on September 12, 1992, barring

a further modification of, or agreement to extend, their terms. Although both sides to the 1989 CBA

and HIA performed their obligations under the terms of the agreements, the 1989 HIA was not

formally executed by Borg Warner and the UAW until December 10, 1992. (ECF No. 96, Defs.’

Mot. Ex. 1, p. 16, 16-B.) 

On September 27, 1990, while the parties were performing under the terms of the 1989 CBA

and HIA, they negotiated and executed an Agreement on Modification and Extension of Existing

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Labor Contract (the “ACME Contract”), which extended the 1989 CBA and HIA to March 11, 1995. 

(ECF No. 96, Defs.’ Mot. Ex. 2, 1990 ACME Contract.) In the ACME Contract, Borg Warner and

the Union agreed to certain “Letters of Understanding” that were attached to the ACME Contract,

including one entitled “Joint Letter of Agreement on Post-Retirement Benefit Liabilities.” (Id. Ex.

3.) In this Letter of Agreement, Borg Warner and the Union addressed the very vesting issue

presented to this Court, setting forth their “agreement to disagree” on the vesting issue as follows:

The parties . . . hereby acknowledge that medical insurance and life insurance

benefits payable to the hourly retirees of DTP Muncie Plant (PRB Liabilities) pose

a serious threat to the financial value and competitive status of the DTP Muncie

Plant. The parties further recognize that a significant increase in the PRB Liabilities

will occur over the next decade and beyond. 

***

The parties hereby agree to establish a joint task force in an attempt to seek a

solution to the PRB Liabilities issue which is acceptable to both parties and which

is intended to reduce the projected total 1999 PRB Liabilities. 

***

This agreement does not prejudice the union’s position that current retirees have lifetime vested benefits nor the DTP Muncie Plant’s position that current retirees do not

have lifetime vested benefits.

(ECF No. 96, Defs.’ Mot. Ex. 2, p. 7, Ex. 3.) In July, 1992, the Joint Task Force issued a report

setting forth certain options that the Committee had considered, none of which was binding on the

parties. (ECF No. 112, Pls.’ Resp. Ex. 2, July 1992 Summary of the Joint Task Force.) 

Subsequent to executing the 1990 ACME Contract, the parties again extended the HIA on

December 10, 1992 and then negotiated and adopted changes to the HIA in March 1995, March

1998, December 2000, and April 2005. (ECF No. 97, Ex. 15, Exs. 2, 3, 4, 5.) None of these

subsequent HIAs altered any of the language regarding termination of benefits or addressed directly

the vesting issue or the 1990 ACME Contract “agreement to disagree” on the subject. The 1989

HIA was the last completed, signed HIA. 

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Under the 1992 HIA, a new category of retirees was created, Category B Retirees, those

hired after December 31, 1992. (ECF No. 96, Defs.’ Mot. Ex. 4, 1992 HIA, 9.) Borg Warner agreed

to create a Retiree Health Account (“RHA”) for Category B retirees to which the company made

hourly contributions. (ECF No. 96, Defs.’ Mot. Ex. 4, 1992 HIA, 2-3, 9-10.) Category B retirees

are not part of the instant lawsuit or the certified class. (ECF No. 102, Pls.’ Mot. 3, n.3.) 

Under the 1992 HIA, and later the 1995 HIA, Category A Retirees, those future retirees hired

prior to January 1, 1993, were divided into subclasses, some of whom were required to participate

in a PPO program and some of whom were subject to annual increases in deductibles and stop-loss

amounts. (ECF No. 96, Defs.’ Mot. Ex.4, 1992 HIA 5, 65, 80; Ex. 5, 1995 HIA 66-67, 82.) There

were three subgroups of Category A retirees created under the 1992 HIA, depending upon whether

the retiree participated in a new Preferred Provider Option (“PPO”) that became effective on January

1, 1993: (1) pre-1993 retirees who were not covered by the PPO because they retired before it came

into existence; (2) elective retirees who retired between January 1, 1993 and March 11, 1995, who

were given the option of either electing PPO coverage or coverage under the pre-1993 retiree

program; and (3) post-March 11, 1995 retirees who were obligated to elect coverage under the PPO.

(ECF No. 96, Defs.’ Mot. Ex. 4, 5-9; Ex. 5, 5-9; ECF No. 103, Pls.’ Mot. Ex. 3, July 17, 2007

Declaration of Jerry French in Borgwarner v. UAW, No. 06-0058 (S.D. Ind. 2006), ¶ 14.) Class

Representative Winningham and Kelley were subject, as post-March 11, 1995 retirees, to the PPO

participation requirement and to these annual deductible and stop loss increases. (ECF No. 100,

Defs.’ Mot. Ex. 23, Kelley Dep. 11:17-20 (retired in 2001); Ex. 25, Winningham Dep. 9:18-20

(retired in 1996).) 

In 1995, the parties entered into a new CBA which carried forward the terms of the 1992

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HIA, with a term until March 12, 1998. (ECF No. 97, Defs.’ Mot. Ex. 15, Ex. 2, 1995 CBA art. 16,

sec. 1, p. 124.) In 1998, they entered into a new CBA and negotiated a new HIA with terms until

March 12, 2001. (ECF No. 97, Defs.’ Mot. Ex. 15, Ex. 3, 1998 CBA art. 16 sec. 1, p. 69; ECF No.

96, Defs.’ Mot. Ex. 6, 1998 Tent. HPW Agmt. 1-3; ECF No. 98, Ex. 19, Champagne Dep. 99:15-

100:7.)5 The 1998 HIA increased certain existing retirees’ co-payments for prescription drugs by

forty percent for generic drugs and twenty percent for branded ones. (ECF No. 96, Defs.’ Mot. Ex.

6, 1998 HPW Tent. Agmt. 1; Ex. 7, 1998 Health Bens. Summ. 3; ECF No. 100, Ex. 24, Nuerge Dep.

89:24-90:25.) Class Representative Winningham was subject to this increase.

In 2000 the parties entered into a new CBA and HIA with terms ending March 12, 2006. 

(ECF No. 97, Ex. 15, Ex. 4, 2000 CBA art. 16 sec. 1; ECF No. 96, Ex. 8, 2000 Tent. Agmt. 1-2.) 

The only relevant change was an increase in deductible and stop loss maximums of 5% for the years

2002-2005. (ECF No. 96, Ex. 8, p. 2.) In 2005 they entered into the most recent CBA and HIA

which expired on April 24, 2009. (ECF No. 97, Ex. 15, Ex. 5, 2005 CBA art. 15, sec. 1, p. 117; ECF

No. 96, Ex. 9, 2005 Tent. Agmt. 1; Ex. 10, 2005 Tent. Agmt. Clarifications 1-2; ECF No. 98, Ex.

18 Campbell Dep. 48:23-50:14, 63:7-64:1.) The 2005 HIA included a reduction in health care

benefits and monthly contributions for future retirees and included a provision that hourly

retirement-eligible employees who were hired before January 1, 1993, could elect to retire on some

5 The parties never fully drafted 1998 or 2000 HIAs that encompassed the changes to which they

agreed. See Declaration of Jerry French, Pls.’ Mot. Ex. 3, ¶¶ 11, 22-25. There is no dispute

between the parties of significance to this litigation regarding the changes to the HIA that resulted

from the 1998, 2000 and 2005 negotiations. These issues were relevant, and indeed the French

Declaration was prepared, in connection with the separate Indiana litigation which concluded that

Borg Warner could not change health care benefits during the term of the then-existing HIA, which

did not expire until February 26, 2009. See Borgwarner Diversified Transmission Products, Inc.

v. UAW, No. 06-cv-058, 2008 WL 4274476, at *1 (S.D. Ind. Sept. 12, 2008). 

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date between April 2005 and May 1, 2006, and preserve the same benefits that were available under

the 2000 HIA. (ECF No. 103, Pls.’ Mot. Exs. 13, 14.)

In 2006, Borg Warner modified its health insurance coverages, aligning retiree benefits with

those of current employees and filed an action in the United States District Court for the Southern

District of Indiana seeking a declaration that it was permitted to unilaterally alter its health insurance

plan prior to the expiration of the term of the operative HIA. Borgwarner Diversified Transmission

Products, Inc. v. UAW, No. 06-cv-058, 2008 WL 4274476, at *1 (S.D. Ind. Sept. 12, 2008). The

changes included requiring payment of monthly premiums, increasing annual deductibles, and

increasing co-pays for drugs. Id. The district court held that Articles V and XII of the 2005 HIA

prevented Borg Warner from unilaterally altering retiree benefits during the contract period. Id. at

*3. In a subsequently issued opinion denying Borg Warner’s request for a finding on the issue of

lifetime vesting, the district court explained that: “[T]he lifetime benefits issue is not properly before

the Court because the retirees have a contractual guarantee of benefits until the current collective 

bargaining agreements expire and the retirees do not seek a declaration of their rights to lifetime

benefits.” Borgwarner Diversified Transmission Products, Inc. v. UAW, No. 06-cv-058, 2008 WL

4724283, at *3 (S.D. Ind. Oct. 24, 2008).

On February 26, 2009, when the April 2005 HIA expired by its terms, the parties executed

a Plant Shutdown Agreement, permanently closing the Muncie Plant and reiterating the “agreement

to disagree” contained in the 1990 ACME Contract: 

The Company and the Union have a dispute with respect to the nature of the

Company’s obligation to provide post-retirement health care benefits to employees

who retired prior to February 23, 2009 and their dependents. Nothing in this Plant

Shutdown Agreement affects the parties’ rights or positions with regard to that

dispute.

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(ECF No. 97, Defs.’ Mot. Ex. 11, Plant Shutdown Agreement, art. 9, sec. B(2).) 

On May 1, 2009, Borg Warner shuttered the Muncie Plant and unilaterally implemented

modifications to the health care benefits of all persons who had retired from the Muncie Plant after

October 27, 1989, the effective date of the 1989 HIA. Plaintiffs are approximately 1,750 retirees

and surviving spouses of retirees who retired from Borg Warner’s Muncie Plant under a number of

different CBAs and HIAs between October 27, 1989 and February 23, 2009, and now challenge

Borg Warner’s unilateral modification of their health care benefits.

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 56, a party against whom a claim, counterclaim,

or cross-claim is asserted may file a motion for summary judgment “at any time until 30 days after

the close of all discovery,” unless a different time is set by local rule or court order. Fed. R. Civ.

P. 56(b). Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Of course, [the moving party]

always bears the initial responsibility of informing the district court of the basis for its motion, and

identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex, 477 U.S. at 323. See also Gutierrez v. Lynch, 826 F.2d 1534, 1536

(6th Cir. 1987).

A fact is “material” for purposes of a motion for summary judgment where proof of that fact

“would have [the] effect of establishing or refuting one of the essential elements of a cause of action

or defense asserted by the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984)

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(quoting Black’s Law Dictionary 881 (6th ed. 1979)) (citations omitted). A dispute over a material

fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Conversely,

where a reasonable jury could not find for the nonmoving party, there is no genuine issue of material

fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993). In making this

evaluation, the court must examine the evidence and draw all reasonable inferences in favor of the

non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir. 1984). “‘The

central issue is whether the evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of law.’” Binay v.

Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (quoting In re Calumet Farm, Inc., 398 F.3d 555, 558

(6th Cir. 2005)). 

If this burden is met by the moving party, the non-moving party’s failure to make a showing

that is “sufficient to establish the existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial,” will mandate the entry of summary judgment. 

Celotex, 477 U.S. at 322-23. The non-moving party may not rest upon the mere allegations or

denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must

set forth specific facts which demonstrate that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). 

The rule requires the non-moving party to introduce “evidence of evidentiary quality”

demonstrating the existence of a material fact. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135,

145 (6th Cir. 1997); see Anderson, 477 U.S. at 252 (holding that the non-moving party must produce

more than a scintilla of evidence to survive summary judgment). “A genuine issue of material fact

exists if a reasonable juror could return a verdict for the nonmoving party.” Pucci v. Nineteenth

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Dist. Ct., 628 F.3d 752, 759 (6th Cir. 2010).

“Rule 56(e)(2) leaves no doubt about the obligation of a summary judgment opponent to

make [his] case with a showing of facts that can be established by evidence that will be admissible

at trial.... In fact, ‘[t]he failure to present any evidence to counter a well-supported motion for

summary judgment alone is grounds for granting the motion.’ Rule 56(e) identifies affidavits,

depositions, and answers to interrogatories as appropriate items that may be used to support or

oppose summary judgment.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (quoting

Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009)). 

“In reviewing a summary judgment motion, credibility judgments and weighing of the

evidence are prohibited. Rather, the evidence should be viewed in the light most favorable to the

non-moving party.” Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir. 2009) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “Thus, the facts and any inferences that

can be drawn from those facts[ ] must be viewed in the light most favorable to the non-moving

party.” Id. (alteration in original) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986) and Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005)). “For

cross-motions for summary judgment, we must evaluate each motion on its own merits and view all

facts and inferences in the light most favorable to the non-moving party.” Spectrum Health, 410 F.3d

at 309 (internal quotation marks and citation omitted). 

III. ANALYSIS

A. Vesting of Collectively Bargained Health Care Benefits - The Analytical

Framework

1. Vesting of health care benefits is a matter of contractual agreement.

“A retiree health care insurance benefit plan is a welfare benefit plan under ERISA.” Yolton

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v. El Paso Tennessee Pipeline Co., 435 F.3d 571, 578 (2006). Unlike pension plans, which are

subject to mandatory statutory vesting requirements, health care benefit plans are creatures of

contract, with rights to coverage arising only by virtue of the parties’ agreement:

Unlike pension plans, there is no statutory right to lifetime health benefits. If

lifetime health care benefits exist for the plaintiffs, it is because the UAW and the

defendants agreed to vest a welfare benefit plan. If a welfare benefit has not vested,

after a CBA expires, an employer generally is free to modify or terminate any retiree

medical benefits that the employer provided pursuant to that CBA.

Yolton, 435 F.3d at 578 (internal citations and quotation marks omitted). “If lifetime health care

benefits exist for [these Plaintiffs], it is because the UAW and [Borg Warner] agreed to vest a

welfare benefit plan.” Id. (citing Golden v. Kelsey-Hayes Co., 73 F.3d 648, 654 (6th Cir. 1996)). 

The threshold issue, then is whether Plaintiffs and Defendants agreed that retiree health care

benefits would vest, i.e. that they would last a lifetime without alteration. The starting point for this

inquiry is the collective bargaining agreement: 

[W]hether retiree insurance benefits continue beyond the expiration of the collective

bargaining agreement depends upon the intent of the parties. Clearly the parties to

a collective bargaining agreement may provide for rights which will survive

termination of their collective bargaining relationship. The parties may, for example,

provide retiree insurance benefits which survive the expiration of the collective

bargaining agreement. Any such surviving benefit must necessarily find its genesis

in the collective bargaining agreement.

UAW v. Yard-Man, Inc., 716 F.2d 1476, 1479 (6th Cir. 1983) (internal citations omitted). In Yardman, the Sixth Circuit enunciated the important guiding principles of statutory construction that

must be applied to determine whether the parties’ intent to provide for lifetime vested benefits can

be learned by reference to the CBA alone:

Many of the basic principles of contractual interpretation are fully appropriate for

discerning the parties' intent in collective bargaining agreements. For example, the

court should first look to the explicit language of the collective bargaining agreement

for clear manifestations of intent. The intended meaning of even the most explicit

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language can, of course, only be understood in light of the context which gave rise

to its inclusion. The court should also interpret each provision in question as part of

the integrated whole. If possible, each provision should be construed consistently

with the entire document and the relative positions and purposes of the parties. As

in all contracts, the collective bargaining agreement's terms must be construed so as

to render none nugatory and avoid illusory promises. Where ambiguities exist, the

court may look to other words and phrases in the collective bargaining agreement for

guidance. Variations in language used in other durational provisions of the

agreement may, for example, provide inferences of intent useful in clarifying a

provision whose intended duration is ambiguous. Finally, the court should review the

interpretation ultimately derived from its examination of the language, context and

other indicia of intent for consistency with federal labor policy. This is not to say that

the collective bargaining agreement should be construed to affirmatively promote

any particular policy but rather that the interpretation rendered not denigrate or

contradict basic principles of federal labor law.

716 F.3d at 1479-80 (internal citations and quotation marks omitted).

The Sixth Circuit recently reaffirmed that Yard-Man continues to guide the inquiry into

whether the parties to a CBA intended health care benefits to vest: 

[C]ourts must first examine the CBA language for clear manifestations of an intent

to vest. [Yard–Man, 716 F.2d at 1479]. Furthermore, each provision of the CBA is

to be construed consistently with the entire CBA and “the relative positions and

purposes of the parties.” Id. The terms of the CBA should be interpreted so as to

avoid illusory promises and superfluous provisions. Id. at 1480. Our decision in

Yard–Man also explained that “retiree benefits are in a sense ‘status’ benefits which,

as such, carry with them an inference . . . that the parties likely intended those

benefits to continue as long as the beneficiary remains a retiree.” Id. at 1482. With

regard to the “Yard–Man inference,” later decisions of this court have clarified that

Yard–Man does not create a legal presumption that retiree benefits are interminable.

Yolton, 435 F.3d at 579. Rather, Yard–Man is properly understood as creating an

inference only if the context and other available evidence indicate an intent to vest.

Id.

Bender v. Newell Window Furnishings, Inc., 681 F.3d 253, 261 (6th Cir. 2012) (quoting Noe v.

PolyOne Corp., 520 F.3d 548, 552 (6th Cir. 2008) (modifications in original). Only if the parties’

intent cannot be discerned from examining and attempting to harmonize all relevant provisions of

the governing CBA is resort to extrinsic evidence appropriate: 

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When an ambiguity exists in the provisions of the CBA, then resort to extrinsic

evidence may be had to ascertain whether the parties intended for the benefits to

vest. [UAW] v. BVR Liquidating, Inc., 190 F.3d 768, 774 (6th Cir.1999). If an

examination of the available extrinsic evidence fails to conclusively resolve the issue

and a question of intent remains, then summary judgment is improper. [United Mine

Workers] v. Apogee Coal Co., 330 F.3d 740, 744 (6th Cir. 2003). 

Bender, 681 F.3d at 261-62 (quoting Noe, 520 F.3d at 552) (modifications in original). See also

Cole v. ArvinMeritor, Inc., 549 F.3d 1064, 1070 (6th Cir. 2008) (“If an examination of the available

extrinsic evidence fails to conclusively resolve the issue and a question of intent remains, then

summary judgment is improper.”) (citing Apogee Coal, 330 F.3d at 744). “If the issue cannot be

resolved by summary judgment, it is now settled that there would be no right to a jury trial of these

claims.” Bender, 681 F.3d at 262 (citing Reese v. CNH Am., LLC, 574 F.3d 315, 327–28 (6th Cir.

2009) (“Reese I”)).

Throughout, Plaintiffs bear the burden of establishing that vesting has occurred. Bender, 681

F.3d at 262 (“plaintiffs continue to bear the burden of proving that vesting has occurred”). While

Yard-Man creates an inference or a “thumb on the scales” in favor of vesting, it does not shift the

burden to the Defendant. Golden, 73 F.3d at 656 (“Yard-Man does not shift the burden of proof to

the employer, nor does it require specific anti-vesting language before a court can find that the

parties did not intend benefits to vest.”). The Sixth Circuit in Bender observed that Yard-Man

suggests an inference in favor of vesting based upon the fact that retiree benefits are “status” benefits

which carry with them an inference that they were intended to continue as long as the “status,” i.e.

that of a retiree, continues to exist. The Sixth Circuit cautioned, however, that the “Yard-Man

inference” does not alter Plaintiffs’ “burden of proving that vesting has occurred,” but only acts like

“a thumb on the scales” or a “nudge” in favor of vesting where the court first finds either explicit

contractual language or extrinsic evidence indicating an intent to vest:

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Although no legal presumption arises and plaintiffs continue to bear the burden of

proving that vesting has occurred, this court will apply the Yard-Man inference “so

long as we can find either explicit contractual language or extrinsic evidence

indicating an intent to vest.”

 

Bender, 681 F.3d at 262 (quoting Reese I, 574 F.3d at 321). Significantly, as neither the union nor

the company is obligated to represent the interests of retirees in future negotiations, and because

healthcare benefits are often considered to be a form of deferred compensation, the Yard-Man

inference also serves to support the realization that retired workers likely would not choose to leave

the future of their entitlement to compensation for work performed to the vagaries of future

bargaining units. See Yolton, 435 F.3d at 581 n.6, n.8. See also Yard-Man, 716 F.2d at 1482 (“The

employees are presumably aware that the union owes no obligation to bargain for continued benefits

for retirees. If they forego wages now in expectation of retiree benefits, they would want assurance

that once they retire they will continue to receive such benefits regardless of the bargain reached in

subsequent agreements.”).

In the face of express, unambiguous contractual language disclaiming an intent to vest, the

inferences suggested by Yard-Man and its progeny cannot be invoked to contradict the explicit

language of the negotiated contracts. Linville v. Teamsters Misc. and Indus. Workers Union, Local

284, 206 F.3d 648, 651 (6th Cir. 2000) (“The Yard–Man inference, however, cannot be used to

contradict the express text of the agreement or plan documents.”). In Linville, the plan provided

“that ‘[c]overage ceases when the individual reached age 65.’” Id. (Alteration in original). In the

face of such explicit contractual terms cutting off benefits, not present in the CBAs or HIAs in this

case, the Sixth Circuit concluded that “the district court was incorrect in applying the Yard-Man

inference . . . .” Id. 

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2. The significance of certain contractual language as evidence of intent.

In the absence of express contractual language disclaiming an intent to vest, the Sixth Circuit

has recognized that the incorporation of certain language in collectively bargained health care

agreements can serve as an indicia of an intent to vest health care benefits. All provisions of the

controlling collectively bargained agreements, here the CBAs and the HIAs, must be considered in

such an endeavor, and construed harmoniously if possible, to arrive at the parties’ intent. As YardMan instructs: “The intended meaning of even the most explicit language can, of course, only be

understood in light of the context which gave rise to its inclusion . . . [and a] court should also

interpret each provision in question as part of the integrated whole.” 716 F.2d at 1479. 

a. Tying of pension and health care eligibility.

 The Sixth Circuit has repeatedly recognized that language in a CBA that ties eligibility for

retiree health care benefits to eligibility for pension benefits manifests an intent to create lifetime

health care benefits:

According to this court, language in an agreement that ties eligibility for retiree

health benefits to eligibility for a pension indicates an intent to vest the health

benefits. See McCoy v. Meridian Auto. Sys., Inc., 390 F.3d 417, 422 (6th Cir. 2004);

see also Golden v. Kelsey-Hayes Co., 73 F.3d 648, 656 (6th Cir. 1996). In McCoy,

the agreement between the parties stated: “The Company shall contribute the full

premium or subscription charge for Health Care ... for (i) a retired employee

(including any eligible dependents) provided such retired employee is eligible for

benefits under Article II of the Company's Hourly-Rate Employees Pension Plan.”

McCoy, 390 F.3d at 419. After outlining the applicable law under Yard-Man and its

progeny, the McCoy court held that because the CBA provision “ties eligibility for

retirement-health benefits to eligibility for a pension . . . there is little room for

debate that retirees' health benefits vested upon retirement.” Id. at 422. Likewise, the

Golden court found an intent to vest retiree health benefits because there were

“provisions in each of the CBAs ... which tie retiree and surviving spouse eligibility

for health insurance coverage to eligibility for vested pension benefits.” Golden, 73

F.3d at 656; see also Yolton, 435 F.3d at 580 (citing Golden for the proposition that

tying eligibility for retiree health benefits to eligibility for pension benefits indicates

an intent to vest).

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Noe v. PolyOne Corp., 520 F.3d 548, 558 (6th Cir. 2008) (footnote omitted). 

In Noe, the Sixth Circuit concluded that the following “tying” language served as evidence

of an intent to vest health care benefits: “‘Employees who retire and who are eligible under the 1979

Employee Benefit Agreement for a Pension (other than a Deferred Vested Pension), shall receive

the benefits described in this Article;’” and also in the language providing that “[e]mployees who

retire and who are eligible under this Agreement for a pension (other than a Deferred Vested

Pension), shall receive the Major Medical Benefits described in this Paragraph 12.7....” Id. at 559

(quoting the parties’ bargaining agreement). Criticizing the district court for disregarding such tying

language, the Sixth Circuit concluded:

It is evident that the district court failed to appreciate that by tying the eligibility for

retiree health benefits to the eligibility for a pension, the EBAs were actually

speaking to the duration of the benefits. As we explained in Golden, “[s]ince retirees

are eligible to receive pension benefits for life,” the act of tying retiree health

benefits to pension eligibility indicates “that the parties intended that the company

provide lifetime health benefits as well.” Golden, 73 F.3d at 656 (explaining why the

district court in Golden correctly focused on the presence of tying language). Here,

the EBAs undoubtedly tie eligibility for retiree health coverage to eligibility for a

pension, which is evidence of an intent to vest.

Noe, 520 F.3d at 559.

b. General durational clauses cannot trump a contractual promise for lifetime,

vested benefits.

Several employers have attempted to rely on durational clauses in the parties’ collective

bargaining agreements as evidence that the parties similarly intended to limit retiree health benefits

to the duration of the CBA. In Yolton, supra, the Sixth Circuit addressed the relevance of general

durational provisions in a CBA to the vesting of retiree health care benefits. Language in a CBA

which contains a general provision stating that the agreement terminates on a specific date will not

necessarily demonstrate that the health care benefits provided for in that agreement also terminate

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when the CBA expires by its terms. 

In Yolton, the Sixth Circuit held that the district court did not abuse its discretion in rejecting

defendant’s argument that a provision in the CBA stating that the health care plan would “run

concurrently with [the CBA] and is hereby made part of this Agreement,” clearly indicated an intent

not to vest health care benefits. The Sixth Circuit rejected the defendant’s suggestion that the parties

intended that “every time a CBA expires, the company would be free to modify benefits until

another CBA is agreed to. Stated another way, retiree's health insurance coverage is subject to

change every few years based on new bargaining agreements.” 435 F.3d at 580. Similarly, in

Yard–Man, the Sixth Circuit held that “the inclusion of specific durational limitations in other

provisions of the ... collective bargaining agreement suggests that retiree benefits, not so specifically

limited, were intended to survive the expiration of successive agreements in the parties'

contemplated long term relationship.” Yard–Man, 716 F.2d at 1481–82. 

In Bender, supra, the court found a general durational limitation to be insufficient to create

ambiguity regarding an intent for lifetime vesting for retirees:

Defendants argued in the district court that there was no vesting because each of the

CBAs provided that “[t]he insurance program as set forth in Exhibit A is agreed to

for the duration of this contract.” (Emphasis added.)

However, “[a]bsent specific durational language referring to retiree benefits

themselves, courts have held that the general durational language says nothing about

those retiree benefits.” Noe, 520 F.3d at 554. Unlike the specific limitation on the

duration of health insurance for those retiring on or after January 1, 1994, this

language was general in nature and did not create ambiguity regarding the intention

that medical insurance benefits continue for those who had already retired. See

Maurer, 212 F.3d at 917–18. 

Bender, 681 F.3d at 263. In Maurer v. Joy Technologies, Inc., 212 F.3d 907 (6th Cir. 2000), relied

on by the Sixth Circuit in Bender, the court distinguished general durational clauses that do not

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expressly refer to retiree benefits:

According to Joy, the CBAs' language clearly terminated retiree insurance benefits

along with the rest of the CBA provisions by providing that “ [t]he basic [CBA], the

Pension Agreement, the Group Insurance Agreement, and the Supplemental

Unemployment Benefit Agreement, shall remain in full force and effect until

midnight [expiration date],” and that “[t]his [CBA] when signed shall supersede all

previous supplements and agreements made between the parties except as provided

for under the terms of this [CBA].” These clauses are general durational provisions

for the entire agreement, and are not clearly meant to include retiree benefits. See

Yard-Man, 716 F.2d at 1482-83 (general durational clause not necessarily meant to

include retiree benefits). Even though the clause makes clear that the insurance

agreement terminates after three years, caselaw indicates that the termination of the

agreement does not indicate the termination of benefits created by it, if the benefits

are intended to vest. See id. If benefits have vested, then retirees must agree before

the benefits can be modified, even by a subsequent CBA between the employer and

active employees.

212 F.3d at 917-18 (emphasis added). 

In Cole v. ArvinMeritor, Inc., 549 F.3d 1064 (6th Cir. 2008), the Sixth Circuit recognized

that general durational limits in a CBA, that do not refer specifically to retiree health care benefits,

cannot operate to undo contractual promises of lifetime health care benefits:

[T]he rule in this circuit [is] that general durational clauses cannot trump contractual

promises of lifetime retiree healthcare benefits. “[G]eneral durational provisions only

refer to the length of the CBAs and not the period of time contemplated for retiree

benefits. Absent specific durational language referring to retiree benefits themselves,

courts have held that the general durational language says nothing about those retiree

benefits.” Yolton, 435 F.3d at 580-81 (citations and internal quotation marks

omitted). 

549 F.3d at 1071. 

Similarly, in Noe, supra, the Sixth Circuit held that the following language in an employee

benefit plan was a general durational clause and did not manifest an intent to limit retiree health

benefits to the duration of the CBA: “Effective as of April 21, 1979 and for the duration of this

Agreement, the Company will provide the following plan of hospital expense benefits,

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hospital-medical benefits, surgical benefits, prescription drug benefits, dental benefits and major

medical benefits....” 520 F.3d at 556. Finding the language indistinguishable from that found to be

generally durational in Yolton, the Sixth Circuit in Noe concluded: “[T]he language in § 12.1 does

not specifically refer to retiree benefits; rather, it refers generically to the benefits available for all

employees as well as retirees. Hence, the district court incorrectly held that § 12.1 indicates an intent

not to vest retiree health benefits.” 520 F.3d at 556. Thus, absent contractual language referring to

the duration specifically of retiree health care benefits, general durational clauses will not be

interpreted as evincing an intent not to vest.

c. The significance of specific durational clauses in some provisions but not others.

“The Sixth Circuit has consistently held that the inclusion of specific durational limitations

in some provisions, but not others, suggests that benefits ‘not so specifically limited, were intended

to survive.’” Moore v. Menasha Corp., 690 F.3d 444, 458 (6th Cir. 2012) (quoting Yolton, 435 F.3d

at 581-82). In Yard-Man, the Sixth Circuit acknowledged the interpretive significance of specific

limitations on the duration of benefits for other categories of insureds, such as surviving spouses or

dependents, as inferring the absence of such limitations on benefits for retirees themselves:

[T]he insurance provisions limit health insurance coverage for a retiree’s spouse and

dependent children in case of the retiree’s death to expiration of the collective

bargaining agreement. While this limitation does not preclude an intent to also

terminate the retiree's benefits with the expiration of the collective bargaining

agreement in any event, it is more reasonable to infer that the spouse-dependent child

provision was meant as an exception to the anticipated continuation of benefits

beyond the life of the collective bargaining agreement.

716 F.3d at 1481. See also Noe, 520 F.3d at 562-63 (noting that “[t]he presence of specific

durational language in other provisions and its absence in the retiree health benefits provisions

suggests an intent to vest under our case law” and finding that specific durational language limiting

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entitlement to health care benefits in the case of employees on layoff or on leave indicated an intent

to vest). 

3. The language of an SPD as bearing on intent.

As the Supreme Court cautioned in CIGNA Corp v. Amara, __U.S.__, 131 S.Ct. 1866 (2011),

provisions of a separately issued SPD generally cannot be enforced as terms of the CBA. “[W]e

cannot agree that the terms of statutorily required plan summaries (or summaries of plan

modifications) necessarily may be enforced (under § 502(a)(1)(B)) as the terms of the plan itself.” 

131 S.Ct. at 1877. As the Sixth Circuit recognized in Bender, acknowledging the Supreme Court’s

cautionary language in CIGNA, “a plan summary cannot vitiate contractually vested or

bargained-for-rights.” 681 F.3d at 265 (internal quotation marks and citation omitted). It is well

accepted that, in the event of ambiguity in the language of the CBA, an SPD may be considered as

extrinsic evidence of intent. However, the Sixth Circuit has also recognized certain limited

circumstances in which it may be appropriate to consider the language of the SPD “‘alongside the

CBA before reaching the ambiguity issue.’” Bender, 681 F.3d at 264 (quoting “dicta” from

Schreiber v. Phillips Display Components Co., 580 F.3d 355, 365 n. 12 (6th Cir. 2009)). 

First, language in the CBA that explicitly and unequivocally incorporates the terms of the

SPD into the CBA may support the Court’s consideration of the language of the SPD along with the

provisions of the CBA. Schreiber, 580 F.3d at 365 n.12. In Bender, the Sixth Circuit clarified that

any such “incorporation by reference” could only occur based upon “explicit incorporation

language” in the CBA, leaving no room for doubt that the SPD should be considered on par with the

language of the CBA. 681 F.3d at 264-65 (finding that CBAs reference to a “booklet and policy”

without any “explicit language of incorporation” was insufficient to support incorporation by

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reference).

Secondly, the Sixth Circuit has recognized that in limited circumstances, explicit and

unqualified language in an SPD that reserves the employer’s right to unilaterally terminate or modify

benefits can preclude a finding of an intent to vest:

If an employer includes “unqualified reservation-of-rights language” in an SPD to

the effect that the employer has a “unilateral right ... to terminate coverage,” and if

a union fails to grieve or object to such language, then such reservation-of-rights

language “prevent[s] retiree benefits from vesting” even if the SPD was distributed

after the effective date of the CBA. Prater v. Ohio Educ. Ass'n, 505 F.3d 437, 444

(6th Cir.2007); see Maurer, 212 F.3d at 919. But there is an exception. No divesting

occurs when the SPD contains language reminding readers that “the contracts

represent the full commitments between the parties” because a union cannot fairly

be expected to protest when the SPD makes it clear that the CBA, not the SPD,

controls a conflict. See Prater, 505 F.3d at 444-45.

Reese I, 574 F.3d at 323. The touchstone for deciding the weight to be given such language is

whether the contested “reservation of rights [is] sufficiently unqualified so as to fairly be expected

to prompt an immediate protest by the union.” Bender, 681 F.3d at 265. In Bender, the Sixth

Circuit again recalled this same conclusion from Prater, explaining that “the prohibition on

unilateral modification in the CBA meant that the union could not be required to protest the SPD

as long as ‘the summary does not explicitly renounce the CBA.’” 681 F.3d at 266 (quoting Prater,

505 F.3d at 455). See also Moore, 690 F.3d at 458-59 (“Only where the SPD states ‘an unqualified

assertion of a unilateral right to end retiree medical insurance benefits without regard for existing

or future CBAs,’ do we allow a later-issued SPD to trump the terms of a bargained-for CBA.”)

(quoting Bender, 681 F.3d at 266); McCoy v. Meridian Automotive Sys., Inc., 390 F.3d 417, 425 (6th

Cir. 2004) (holding that an SPD that seeks to terminate benefits but refers to the underlying CBA,

which the union believed vested health care benefits, would not prompt a union protest and cannot

vitiate benefits guaranteed under the CBA). 

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4. The significance of an ROR within the negotiated agreement.

The Sixth Circuit also recently found no inherent incompatibility between a promise of

continuous healthcare coverage and a reserved right to discontinue those same promised benefits

in the same negotiated agreement. In Witmer v. Acument Global Tech., Inc., 694 F.3d 774 (6th Cir.

2012), the Sixth Circuit affirmed the ruling of the district court, which had concluded that Acument

had not promised lifetime, unchangeable healthcare benefits to its retired employees where it granted

lifetime benefits but in the same CBA, reserved the right to amend, modify, suspend or terminate

plan benefits:

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-of-rights 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 to amend ... 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

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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.

694 F.3d at 775-76. The Sixth Circuit found nothing inconsistent in the promise of “continuous

health insurance” for the “life of the retiree,” and the reservation of the right to take those lifetime

benefits away: “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.” Id. at 777.

As Witmer makes clear, an important distinction must be maintained between a decision to

continue health care benefits beyond the life of an existing agreement and a promise to provide those

benefits for a lifetime, without change. While a promise of lifetime benefits may be made, and while

that promise may continue through successive iterations of the parties’ agreements, conduct on the

part of the employer choosing to continue those benefits, or stated otherwise the employer’s choice

not to exercise its option to discontinue them, cannot negate an original clearly expressed intent to

reserve the right to do so. The District Court in Witmer, Judge Duggan, noted this important

distinction:

Plaintiffs contend that extrinsic evidence confirms the parties' intent to vest benefits.

Plaintiffs cite the continuation of benefits by Ring Screw and Acument after

termination of the relevant CBAs, arguing that this conduct is evidence that the

parties understood the CBAs to have vested retirees' health care and life insurance

benefits. Acument's conduct fails to establish vesting, as it is entirely consistent with

a reservation of rights. Acument did not exercise its right to amend, modify, suspend,

or terminate retirees' benefits until late 2007, but the Court cannot presume that

Acument's continued provision of benefits waived this right, and Plaintiffs have

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failed to cite any legal authority holding that delay in exercising one's contractual

right constitutes waiver.

Witmer v. Acument Global Tech., Inc., No. 08-12795, 2011 WL 2111899, at *6 (E.D. Mich. May

26, 2011). 

5. Consideration of extrinsic evidence.

Only if the parties’ intent still cannot be discerned from examining and attempting to

harmonize all relevant provisions of the governing CBA is resort to extrinsic evidence appropriate. 

“When an ambiguity exists in the provisions of the CBA, then resort to extrinsic evidence may be

had to ascertain whether the parties intended for the benefits to vest.” Bender, 681 F.3d at 261-62

(quoting Noe, 520 F.3d at 552) (citation omitted). As discussed infra, when consideration of

extrinsic evidence is appropriate, the company’s totality of conduct with regard to its retirees’ right

to benefits is relevant to whether a promise of lifetime benefits has been made and whether an SPD,

or even a CBA, clearly establishes the company’s right to unilaterally end retiree medical insurance

benefits.

B. Borg Warner’s Contention That the Parties Never Agreed to Vested Retiree

Health Care Benefits

Borg Warner relies on what it asserts is the explicit and unambiguous language of the CBAs

and HIAs, and the 1990 ACME Agreement, to support its vesting argument. It asserts that the Court

need not invoke the tools of contractual interpretation suggested by Plaintiffs, i.e. it need not

examine and attempt to harmonize various the provisions of these contract documents that Plaintiffs

assert support an inference of tying because, in Borg Warner’s view, the contract language is

unambiguous on the issue of vesting. Borg Warner asserts that it agreed to provide health care

benefits to retirees only during the term of each respective HIA, not for the life of the retiree (or the

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life of the retiree’s spouse). Defendants argue that each HIA had a termination date and that all

benefits guaranteed thereunder, including specifically retiree benefits, were terminable at that time. 

Each HIA gave either party the right to terminate, modify or continue the health care agreement and

the benefits thereunder in accordance with the terms of the CBA, which allowed either party to

terminate the CBA upon written notice given sixty days’ prior to its date of expiration. Between

1989 and 2005, each HIA that expired was replaced with a subsequent HIA that continued coverage

with certain alterations. The final HIA, the 2005 HIA, was terminated according to its terms in the

Plant Shutdown agreement. 

Defendants contend that each HIA specifically stated that the health care benefits provided

in that particular HIA, including expressly retiree benefits, also terminated. Defendants contend that

language contained in each HIA distinguishes this case from the many cases in which the Sixth

Circuit has concluded that durational language that does not specifically refer to retirees’s healthcare

benefits is not sufficient to prove an intent not to vest retiree benefits. In support of this important

distinction, Borg Warner relies on § 2(M)(2) of the 1989 (and successive) HIAs, which expressly

refers to retiree benefits and provides that the health care coverages described in the HIA terminate

on the date that: (1) the employee leaves employment, i.e. retires, is laid off, is disabled; (2) the

employee/dependent is no longer eligible for coverage; (3) fails to make any applicable premium

payments; (4) the employee/retiree dies; or (5) the HIA is terminated. (ECF No. 96, Defs.’ Mot. Ex.

1, 1989 HIA, Appendix A, Ex. A, § 2(M)(2), pp. 65-66.) (Emphasis added). Thus, Defendants

argue, when Borg Warner chose to terminate the 2005 HIA in 2009, retiree benefits, that had been

continued at Borg Warner’s option through extensions of successive HIAs from 1989-2005, had

expired.

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Borg Warner also contends that the 1990 ACME Agreement, along with similar language

in the 2009 Plant Shutdown Agreement, expressed a clear and unambiguous refusal on the part of

Borg Warner to agree to provide lifetime inalterable benefits for its retirees. In the 1990 ACME

Agreement, an Agreement signed by both Borg Warner and the UAW that modified and extended

the parties’ 1989 CBA, the parties executed a Letter of Understanding that provided:

The parties . . . hereby acknowledge that medical insurance and life insurance

benefits payable to the hourly retirees of DTP Muncie Plant (PRB Liabilities) pose

a serious threat to the financial value and competitive status of the DTP Muncie

Plant. The parties further recognize that a significant increase in the PRB Liabilities

will occur over the next decade and beyond. 

***

The parties hereby agree to establish a joint task force in an attempt to seek a

solution to the PRB Liabilities issue which is acceptable to both parties and which

is intended to reduce the projected total 1999 PRB Liabilities. 

***

This agreement does not prejudice the union’s position that current retirees have lifetime vested benefits nor the DTP Muncie Plant’s position that current retirees do not

have lifetime vested benefits.

(ECF No. 96, Defs.’ Mot. Ex. 2, Ex. 3.) 

Borg Warner also relies on Article XII of the 1989 HIA (and each successive HIA), which

provides for termination of the HIA pursuant to Article Sixteen, i.e. on 60 days notice prior to its

expiration, and also on the Reservation of Rights Clause (“ROR”) contained in the Summary

Description Information (“SDI”) incorporated into the 1989 HIA (and each successive HIA). The

ROR language, which is included within the SDI and was not objected to by the UAW during

negotiations that preceded execution of the 1989 HIA in 1992, clearly reserved the right to modify,

amend, suspend or terminate the Plan “in accordance with the provisions of the [HIA].” (ECF No.

96, Ex. 1, 1989 HIA, 121; ECF No. 98, Ex. 19, Champagne Dep. 120.) The HIA, in turn, limits the

right to terminate, modify or change the terms of the HIA to the manner provided in Article Sixteen

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of the CBA. The CBA, in turn, permits either party to give notice that the CBA is terminated at least

sixty (60) days in advance of September 12, 1992, or any anniversary thereafter. Defendants argue

that the UAW’s agreement to this reservation of rights language in the HIA itself distinguishes this

case from Prater and it progeny because the UAW agreed to this durational limitation on benefits

in a signed contract, not in a separate company-issued SPD. (Defs. Mot. 15, n. 7.) Borg Warner

argues that if the ROR was part of the HIA, its reference back to that same contract does nothing to

defeat the express language reserving to Borg Warner the right to modify, amend, suspend or

terminate the Plan in accordance with the sixty day notice provision of the CBA. See Witmer, 694

F.3d at 775-76 (finding nothing inconsistent in promising continuous health insurance for the life

of the retiree but reserving the right at the same time to take those benefits away).

Finally, Defendants submit that by agreeing to changes over the years modifying, and in

some instances decreasing, the healthcare benefits of existing retirees, the parties confirmed that

those benefits were not vested. Borg Warner points to the 1998 HIA agreements to increase

prescription drug costs for existing retirees who were participating in the network plan and the 2000

HIA agreement to extend, for both existing and future retirees, the annual five-percent increase of

deductibles and stop losses. As then-current retirees, some Plaintiffs were subject to these annual

increases. Defendants argue that imposition and acceptance of these changes clearly demonstrates

that the parties did not perceive retiree health care benefits to be lifetime inalterable. Plaintiffs

respond that these changes were negotiated but Borg Warner argues that because existing retirees

were not represented by the Union these changes, as to them, were in effect unilaterally imposed by

Borg Warner. 

 Defendants submit that their argument, based on the unambiguous language of the negotiated

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agreements themselves, leaves no room for doubt as to the parties’ intent: retiree benefits were

guaranteed for the duration of each successive HIA, and never for the life of the retiree. They

contend that the clearly stated “agreement to disagree,” coupled with equally clear termination of

benefits language in the CBA and HIA, specifically section 2(M)(2) that expressly addresses the

termination of retiree health benefits, defeats any effort by the Plaintiffs to prove intent to vest and

is fatal to the claims of this post-October 27,1989 class of retirees that Borg Warner agreed to

provide them with lifetime unchangeable health care benefits. Defendants argue that in light of such

a clear expression of intent in the plain language of the CBAs and HIAs themselves that retiree

benefits not vest, the Court need not invoke the interpretive principles developed in Yard-Man and

its progeny and need not look to extrinsic evidence to divine a contrary intent. The UAW and Borg

Warner retirees, Defendants argue, have been on notice for over two decades that the company

denied an intent for their health care benefits to be lifetime, inalterable benefits. Defendants submit

that these facts distinguish this case from cases in which the Sixth Circuit has inferred an intent to

vest from harmonizing ambiguous provisions of the governing contract or divined an intent to vest

from extrinsic evidence where it found the governing contract language to be ambiguous.

C. Plaintiffs’ Arguments for Vesting

Plaintiffs characterize the 1990 ACME agreement as a self-serving, “after-the-fact” effort

on the part of Borg Warner to deny what it had promised in the parties’ agreements. Although it is

undisputed that the 1990 ACME agreement was a negotiated instrument, executed by both Borg

Warner and the Union, Plaintiffs assert that the Letter of Understanding containing the “agreement

to disagree” language that was part of the 1990 ACME agreement did not change any of the

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underlying provisions of the collectively bargained 1989 HIA. Plaintiffs argue that the “agreement

to disagree” was nothing more than an agreement to “kick the can down the road” and leave the

competing interpretations of the parties’ collectively bargained contract language as to vesting for

another day. Plaintiffs assert that the day has now come. Plaintiffs argue that if Borg Warner

believed that retiree health care benefits were not lifetime vested under the terms of the 1989 HIA,

they could have changed them when the HIA expired in 1992 or 1995. That Borg Warner did not

do so until 2006, Plaintiffs argue, is in and of itself evidence of vesting.

Plaintiffs argue that Borg Warner is trying to accomplish now what it could not accomplish

through collective bargaining. Plaintiffs point to the fact that in 1992, Borg Warner and the UAW

did agree to limit retiree health care coverage - but not for these class members. In 1992 the parties

agreed to create a second category of retirees, those hired after December 31, 1992, for whom the

company would pay no health care expenses but for whom the company would create a retiree health

account (“RHA”). None of these Category B Retirees is a class member and Plaintiffs urge the

Court to conclude that because no similar restrictions were negotiated for then-existing employees

or retirees (current class members), this is evidence by contrast of an intent that the class members’

benefits were vested.

 Plaintiffs deny that the contract language unambiguously expresses an intent not to vest

retiree health care benefits. As discussed infra, Plaintiffs deny the anti-vesting significance

attributed by Borg Warner to the 1990 ACME “agreement to disagree” and they dispute Borg

Warner’s interpretation of § 2(M)(2) of the HIAs. Plaintiffs urge the Court to find a promise of

lifetime retiree medical benefits through an examination of other provisions of the CBA and HIA

that they argue suggest an intent to vest health care benefits under the interpretive principles

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discussed above that have been developed and applied in the Sixth Circuit. Yard-Man instructs that

the Court “should first look to the explicit language of the collective bargaining agreement for clear

manifestations of intent,” but cautions that “[t]he intended meaning of even the most explicit

language can, of course, only be understood in light of the context which gave rise to its inclusion.” 

716 F.2d at 1479. 

1. Tying eligibility for health care benefits to eligibility for pension benefits.

Plaintiffs rely principally on the language of Article VIII of the HIA, which they argue

unconditionally ties eligibility for receipt of health care benefits to eligibility for pension benefits

in multiple different contexts. Because pension benefits are vested (lifetime inalterable), Plaintiffs

reason, then so are the health care benefits, for which pension benefit recipients become eligible

under the HIA. Plaintiffs urge the Court to focus on Article VIII of the HIA, which Plaintiffs argue

controls the issue of eligibility for health care benefits and evidences the parties’ intent to create

lifetime, inalterable health care benefits because it ties pension benefits (lifetime) to health care

benefits (therefore by inference also lifetime). 

In support of this argument, Plaintiffs rely on Golden, Noe and similar cases, discussed

supra, in which the Sixth Circuit has recognized that language in a CBA that ties eligibility for

retiree healthcare benefits to eligibility for pension benefits manifests an intent to create lifetime

benefits. It is undisputed that several provisions of Article VIII, which governs eligibility for retiree

health care benefits under the HIA, do contain “tying language” that is largely indistinguishable

from that found by the Sixth Circuit in Golden, Yolton, Noe and other cases to indicate an intent to

vest health benefits. Article VIII defines who shall be entitled to the health care and other benefits

set forth in various exhibits attached to and made a part of the HIA and on what conditions. These

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provisions are set forth supra, but by way of summary, they generally provide that employees “who

retire under the Retirement Income Program Agreement [or other company retirement programs].

. . shall be entitled to” the benefits set forth in the HIA. In Section VIII, the company agrees to

provide medical coverage for surviving spouses and dependents of retired employees who are

“receiving a monthly retirement benefit[],” or who were “eligible to retire at the time of death under”

the company retirement programs. Such contractual provisions, in the absence of a finding of

express anti-vesting contractual language, suggest the inference that retirees would receive health

care benefits as long as they retained the “status” of a retiree. 

2. The significance of general durational clauses.

Plaintiffs argue that the absence of a specific durational clause relating expressly to retirees

puts the instant HIAs squarely within the line of cases holding that general durational clauses, those

that purport to limit medical insurance benefits to the duration of the operative contract, do not

manifest an intent not to vest retiree health care benefits. “These clauses are general durational

provisions for the entire agreement, and are not clearly meant to include retiree benefits.” Maurer,

212 F.3d at 918. See discussion supra at section IIIA2b. Borg Warner does not dispute the

proposition that general durational clauses will not, standing alone, preclude vesting. Borg Warner

argues, however, that this case is to be distinguished from the Maurer/Bender line of authority

because here retiree health care benefits are specifically set to terminate with the expiration of each

HIA in Exhibit A, Section 2(M)(2)(e). Defendants argue that this section of the HIA, which

expressly addresses the termination of health care benefits for both active employees and retirees,

provides the specific durational limitation that the Sixth Circuit found lacking in cases such as

Yolton, Maurer, Noe and Bender. As Borg Warner points out, this termination provision controls

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each type of benefit specified in the Exhibits to the HIA, many of which specifically define retiree

benefits. (HIA Exs. A, C, D, E, F and H.) 

Plaintiffs respond that subsections (a) and (d) of § 2(M)(2) specifically refer to the applicable

coverage continuation provisions for retirees and dependents “in the Agreement and/or Exhibit A,”

which in turn refer to Article VIII of the HIA, in which eligibility for pension and health care

benefits are tied together and therefore such benefits do not terminate but continue as set forth in the

HIA. Plaintiffs do not deny that § 2(M)(2) specifically refers to retiree benefits – rather they urge

the Court to disregard subsection (e). At oral argument, Plaintiffs’ counsel argued that the Court

need never “get to” subsection (e) because “if a person retires, then you look at [a], and if a person,

a retiree, dies, then you look at [d].” (ECF No. 119, Transcript of November 7, 2012 Hearing at 56.) 

Plaintiffs argue that “if the coverages end when the agreement is terminated, then there’s no reason

for [a, b, c, or d].” (Id.) Borg Warner reads this section differently. They assert that subsections

a-d do have force and effect and will govern – when the HIA is in effect. In other words, if a person

dies or retires during the term of the HIA, then the continuation provisions of the HIA apply, etc. 

The parties have presented the Court with reasonable competing interpretations of this

contractual provision, leading the Court to conclude, at this stage, that the provision is ambiguous. 

As the district court noted in Zino v. Whirlpool Corp., No. 11-cv-01676, 2013 WL 454418 (6th Cir.

Aug. 27, 2013), in finding the language of the CBAs there to be subject to competing reasonable

interpretations: “‘Where a contractual provision is subject to two reasonable interpretations . . . that

provision is deemed ambiguous and the court may look to extrinsic evidence - additional evidence

that reflects the intent of the contracting parties - to help construe it.’” 2013 WL 4544518, at *16

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(quoting In re AmTrust Fin. Corp., 694 F.3d 741, 750 (6th Cir. 2012)).

3. Specific limitations in some provisions but not others.

“The Sixth Circuit has consistently held that the inclusion of specific durational limitations

in some provisions, but not others, suggests that benefits ‘not so specifically limited were intended

to survive.’” Moore, 690 F.3d at 458 (quoting Yolton, 435 F.3d at 581-82). See discussion supra

at section IIIA2c. Plaintiffs cite several sections of the HIAs in which the parties agreed to specific

durational limitations on health care benefits for non-retirees, such as in the case of active employees

on leave or surviving spouses who remarry. (ECF No. 102, Pls.’ Mot. Summ. Judg. 14-15.) 

Significantly, Article VIII grants benefits to surviving spouses as defined by their eligibility for a

lifetime pension but also limits the surviving spouse’s right to continue receiving benefits upon his

or her remarriage. This specific limitation on a surviving spouse’s continued receipt of benefits

suggests, Plaintiffs argue, that the absence of such limitation elsewhere evidences an intent to vest

in the absence of remarriage. By implication, Plaintiffs argue, no limitation is intended barring the

occurrence of remarriage. Plaintiffs argue that it would be an untenable construction of the HIA to

find that surviving spouses were entitled to lifetime benefits (i.e. coverage defined by eligibility to

receive a monthly pension, which is lifetime inalterable) but that retirees were not – that spouses

were granted greater coverage than the retirees themselves. (ECF No. 102, Pls.’ Mot. 12-13.) 

Plaintiffs also point to provisions that have specific durations for the specified benefits, such

as 24 month transition survivor benefits and bridge income benefits that are specified to last until

the recipient reaches the age of 62 or remarries. (See, e.g. Pls.’ Ex. 7, pp. 29, 31.) Plaintiffs argue

that under Yard-Man, Golden and Bender, these specific limitations on the benefits available to

“non-retirees” indicate that benefits provided to retirees were vested and unlimited. They also argue

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that the provision for these benefits, which in many cases will last longer than the HIA which govern

them, would be entirely illusory if the benefits ceased upon termination of the HIA. (ECF No. 115,

Pls.’ Reply 2.) 

Borg Warner responds that the express limitation on particular benefits for certain categories

of beneficiaries, i.e. spouses, dependents and laid off employees, cannot trump what it interprets as

the specific durational clause (2(M)(2)) that it interprets as specifically limiting retiree benefits. 

However, as the Court has already concluded, the plain language of 2(M)(2) is ambiguous. Under

the interpretive principles applied in this Circuit, these specific limitations on benefits for spouses

and other non-retired employees, in the absence of a finding of express anti-vesting contractual

language, suggest an inference of vesting of retiree health care benefits. 

4. The SDI and reservation of rights language within the HIA.

Both parties agree that in this Circuit, separately issued SPDs that conflict with the language

of the governing CBA are not binding. In this case, language reserving the right to Borg Warner to

terminate the retiree health care benefits at the termination of the contract that created them appeared

in each iteration of the HIA itself. Beginning with the 1989 HIA, each HIA contained a section

entitled Summary Description Information (“SDI”) containing a reservation of rights (“ROR”)

clause stating Borg Warner’s intention to continue benefits but expressly reserving the right to

modify or discontinue those benefits. (See, e.g., ECF No. 96, Defs.’ Mot. Ex. 1, 1989 HIA, p. 121-

23 of 129.)

The SDI provides that the Borg Warner Plan is “maintained pursuant to a Collective

Bargaining Agreement and a Health Insurance Agreement.” (ECF No. 102, Pls.’ Mot. Summ. Judg.

Ex. 2 p. 121, Ex. 5 p. 130, Ex. 6 p. 132.) The reservation of rights provision states as follows:

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FUTURE OF THE PLAN

Although Borg-Warner Automotive Diversified Transmission

Products Corporation, Muncie Plant expects and intends to continue

the Plan indefinitely, it reserves the right to modify, amend, suspend

or terminate the Plan or the Group Policies therein in accordance with

the provisions of the Health Insurance Agreement.

(Id.) This language appearing as it does within the HIA distinguishes this case from others, such

as Bender and Prater, where an SPD is referred to generically in the negotiated agreement and later

distributed to employees and the union, who would then have the onus of reviewing and objecting

to the SPD separate and apart from the negotiated agreement. 

Plaintiffs argue, however, that the SDI and specifically the ROR, although concededly “in

the HIA,” were not actually “negotiated” by the parties. (ECF No. 102, Pls.’ Mot. 17; ECF No. 112,

Pls.’ Resp. Summ. Judg. 7-8; ECF No. 115, Pls. Reply.) Plaintiffs assert that “SPDs are not

negotiated instruments,” and that the ROR that appears in the SDI that is part of the HIA was drafted

by Borg Warner and was not mutually negotiated. Id. Plaintiffs do not deny that the SDI and ROR

appear within the HIA but insist that, although appearing as part of the HIA, the SDI containing the

ROR was prepared by Borg Warner and merely “appended” to the end of the 1989 HIA. 

Plaintiffs argue that even if the SDI language had been negotiated and agreed to by the

Union, it is by its terms “subject to” the provisions of the HIA, which Plaintiffs interpret as

providing lifetime, inalterable medical benefits. But the ROR language would be rendered entirely

illusory under this interpretation as it reserves a right to take action, i.e. modification, amendment

or termination of health care benefits, allegedly forbidden by the same negotiated instrument in

which it appears. As Judge Sutton recognized in Witmer, it is possible to construe such competing

provisions appearing in the same negotiated contract harmoniously:

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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.

Witmer, 694 F3d at 777. Given that Borg Warner and the Union both “acknowledge[d]” in the 1990

ACME Agreement that “medical insurance and life insurance benefits payable to the hourly retirees

of DTP Muncie Plant (PRB Liabilities) pose a serious threat to the financial value and competitive

status of DTP Muncie,” it would be possible under the logic of Witmer to construe the ROR in this

case consistently with a simultaneous grant of lifetime retiree medical benefits. 

This SDI presents a novel question. Here, the SDI and ROR provision appeared within the

formally executed HIA, located among the consecutively numbered pages of the HIA. This supports

Borg Warner’s argument that this was not a standard subsequently-issued SPD and supports the

argument that the reservation of rights was part of the HIA. Since the language appears within the

HIA that was executed by the parties, Borg Warner argues, it is part of that binding contract and,

under the logic of the Sixth Circuit’s decision in Witmer, what the HIA may give it may also take

away. This HIA, Borg Warner argues, does just that. 

Sidestepping this argument somewhat, Plaintiffs argue that the ROR language should be

analyzed as a standard separately issued SPD and assert that a reservation of rights clause in such

an SPD must “include an unqualified assertion of a unilateral right to end retiree medical insurance

benefits without regard for existing or future CBAs” in order to effectively vitiate an intent to vest. 

Bender, 681 F.3d at 267. Plaintiffs argue that this ROR contains no such unqualified assertion,

asserting in their reply brief that “the SPDs also specifically provide that Defendants’ ability to

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modify, suspend or terminate the Plan or policies is subject to the provisions of the HIAs.” (ECF

No. 115, Pls.’ Reply 2.) (Emphasis added.) This is not what the ROR states. The ROR states that

Borg Warner “reserves the right to modify, amend, suspend or terminate the Plan or the Group

Policies therein in accordance with the provisions of the Health Insurance Agreement.” (Pls.’ Mot.

Ex. 2, p. 121; Ex. 5, p. 130; Ex. 6, p. 132.) (Emphasis added.) 

Even if the Court were to disregard the fact that the SDI and ROR appear in the negotiated

and formally executed HIA and were to analyze the SDI under principles applicable to a standard,

separately issued SPD, whether this ROR constitutes an “unqualified reservation-of-rights” made

“without regard for existing or future CBAs,” presents another contractual ambiguity. Plaintiffs

suggest that the language employed in this reservation of rights, i.e. “in accordance with” the

provisions of the HIA, is “nearly identical” to the language used in Bender, Prater and other cases,

i.e. “subject to the provisions of” the HIA. But “in accordance with” as used in this ROR does not

necessarily carry the same connotation as “subject to the provisions of.” To be enforceable, a

reservation of rights must identify a procedure for termination, modification or amendment. See

Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 79-80 (1995). In this case, the ROR provides

that modification or termination must be “in accordance with” the provisions of the HIA. The HIA,

in turn, limits the right to terminate, modify or change the terms of the HIA to the manner provided

in Article Sixteen of the CBA. Article Sixteen of the CBA, in turn, permits either party to give

notice that the CBA is terminated at least sixty (60) days in advance of September 12, 1992, or any

anniversary thereafter. By specifying that termination or modification must be “in accordance with”

the provisions of the HIA, the reservation of rights reasonably could have been specifying only the

procedure by which such changes must be made. Nor does the SDI contain separate language, found

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controlling in other cases like Reese, that reminds readers that the CBA is the governing agreement

and that in the event of a conflict, the CBA controls. Reese, 574 F.3d at 323. Were the Court called

upon to reach the issue of whether this ROR constitutes an “unqualified reservation-of-rights” made

“without regard for existing or future CBAs,” it would face another contractual ambiguity.

Viewing the facts as the Court must in the light most favorable to the non-moving party,

genuine issues of material fact exist as to whether or not the language of the SDI, although appearing

within the HIA, should nonetheless be analyzed under principles applicable to a standard companygenerated, non-negotiated SPD. Borg Warner argues that the SDI in this case was part of the HIA

and that, under Witmer, Borg Warner could take away with one hand what it granted with the other. 

But this is an unusual presentation of a summary description and the facts of this case are not as

clear as those before the court in Witmer, where there was no dispute that the ROR, which did not

appear in the context of a “summary description,” was a negotiated provision the parties’ CBA. 

Plaintiffs point to witness testimony in this case that the SDI was not negotiated, that it was drafted

by Borg Warner and was placed at the end of the HIA without input from the Union. This of course

does not answer the question why the Union proceeded to execute a contract containing this

language. But the Court concludes that these ambiguities and questions of fact preclude a finding

at this stage, based on the HIA language alone, that the SDI was a negotiated provision of the HIA

itself or that the ROR reserved a unilateral right to terminate without regard to the existing CBA.6

6 Even if the exception for unqualified reservation of rights does not apply, it is well accepted that

the summaries and their creation nonetheless ‘serve as extrinsic evidence regarding the extent of the

employer’s promise of future healthcare benefits and whether the parties intended the benefits to

vest.’” Bender, 681 F.3d at 267 (quoting Prater, 505 F.3d at 445). In this case, it is undisputed that

Laura Champagne, the head negotiator for the UAW, reviewed the 1989 HIA, provided the Union

with her comments on the entire agreement, including the SDI provisions, and registered no specific

objection to the ROR language, indicating that the SDI language was acceptable to the UAW. This

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5. Miscellaneous provisions relating to an intent to vest.

Plaintiffs argue that the negotiation of a less generous benefits structure in the 1992 HIA for

“Category B Retirees,” i.e. those who were hired after 1992, and the creation of a window of

opportunity in the 2005 HIA for active employees to retire and maintain the more favorable benefits

available under the 2000 HIA, indicates that healthcare benefits for Category A retirees in the

Plaintiff class, whose benefits were untouched and continued, were vested and untouchable. (Pls.’

Mot. Summ. Judg. 15-17.) Plaintiffs rely again on Bender, where the court found that negotiated

changes providing less favorable benefits for future retirees were relevant because they “contrast

with the simultaneous continuation of health insurance benefits for employees retiring prior to the

change.” 681 F.3d at 263 (emphasis in original). The court found that “the prospective reduction

of post-retirement healthcare benefits offered an obvious incentive for employees to retire” early so

that they could take advantage of the promise of the more favorable healthcare benefits that were

offered pre-1986. Id. Importantly, the court in Bender had already found that pre-1986 the benefits

were vested. Borg Warner responds that in this case, the benefit structure under which the

employees were offered early retirement, i.e. the 2000 HIA benefits, were already subject to the

agreement to disagree and were non-vested benefits. So, from Borg Warner’s perspective, these

arguments have no traction where the “more favorable” benefit package was itself not vested. Yet,

review by the Union was done in October, 1992, before the parties actually executed the 1989 HIA

in December, 1992 and after the parties had expressed their disagreement over the vesting issue in

the 1990 ACME Agreement. (ECF No. 98, Defs.’ Mot. Ex. 19, Champagne Dep. 119-120; ECF No.

109, Defs.’ Resp. Exs. 29, 30, 31, Communications from Laura (then Hess) to Borg Warner.)

Testimony of Ms. Champagne, as discussed infra, demonstrates that this reservation of rights

language, although accepted in 1992 as part of the 1989 HIA, was problematic for the Union and

was believed by Ms. Hess to be inconsistent with a promise of lifetime vested benefits.

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as Plaintiffs point out, in creating the Category B retirees in the 1992 HIA, Borg Warner used

specific nonvesting language that is conspicuous by its absence from prior explanations of benefits

as they relate to Category A retirees: “The company shall have no liability for providing health care

coverage or paying health care expenses after such employees [Category B retirees] terminate

employment.” That language, say Plaintiffs, explicitly disclaims an intent to vest, but not as to

Category A retirees, the Plaintiffs in this action. 

Plaintiffs also argue that the parties’ agreement in 1992 to a ten-year schedule of deductibles

and stop losses that would outlive the 1992 and 1995 HIAs demonstrates an intent to vest benefits. 

Plaintiffs rely on Cole v. ArvinMeritor, Inc., 515 F. Supp. 2d 791, 801 (E.D. Mich. 2006), where the

court found that cost sharing of premium increases for retiree benefits that were scheduled to govern

retiree health costs “decades after expiration of the agreements in which they appear,” were “future

oriented” and indicated an intent to vest underlying retiree healthcare benefits. In this case, Borg

Warner argues that while it was under no obligation to continue providing benefits after the

expiration of the 1995 HIA in 1998, it also had no intention in 1992 of not doing so. Therefore,

making a ten year commitment was not inconsistent with also having the ability to chose not to

continue to provide benefits. Borg Warner’s delay in exercising their termination rights after the

expiration of each HIA cannot amount to a waiver of that right. Witmer, 2011 WL 2111899, at *6.

The Court concludes that these provisions cut both ways. While future oriented promises

of benefits can indicate an underlying intent to vest, Borg Warner is correct that making such

promises is not inherently inconsistent with reserving the right to retract that promise, as Witmer

demonstrates. 

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 D. Extrinsic Evidence on The Issue of Vesting

If an intractable ambiguity persists after the Court has carefully examined the provisions of

the collectively bargained agreements, the Court must turn to extrinsic evidence in an effort to

discern an intent to vest. Plaintiffs offer the testimony of some former Borg Warner employees who

testified to their belief that their health care benefits were guaranteed to remain unchanged for life. 

See ECF No. 109, Defs.’ Resp. Ex. 33, Jan. 6, 2012 Deposition of LaRue Cross, 56-60; ECF No. 99,

Defs.’ Mot. Ex. 21, Dec. 16, 2011 Deposition of Michael Ailes, 113-115; ECF No. 100, Defs.’ Mot.

Ex. 23, Feb. 14, 2012 Deposition of James Kelley, 17-18; ECF No. 100, Defs.’ Mot. Ex. 25, Feb.

14, 2012 Deposition of Eugene Winningham, 33-36. Most of these witnesses could not recall seeing

such a promise in writing but believed it to be the case. Some recalled seeing a pamphlet that stated

as much, but no such pamphlet was ever produced. Some recalled statements by Borg Warner

personnel informing them that their medical benefits were guaranteed to continue unchanged for

their lifetime.

Plaintiffs also offer the testimony of Laura Champagne (formerly Hess), the head negotiator

for the UAW of the 1992 HIA and also a consultant in 1995, who testified to her belief that because

the CBA tied pension benefits to health care benefits, the latter were guaranteed for life. (ECF No.

98, Defs.’ Mot. Ex. 19, Champagne Dep. 43-45.) Ms. Champagne testified to her belief that the

language of the HIA tying eligibility for healthcare benefits to eligibility pension benefits was proof

that retiree healthcare benefits were lifetime vested. Plaintiffs argue that even though Ms. (Hess)

Champagne reviewed and approved the SDI reservation of rights language in the 1989 HIA, there

was no reason for her to object to this language because it was clear that the right to modify or

terminate circled back to the HIA and to the promise of vesting contained therein. Plaintiffs state

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that: “The UAW had no reason to object to the SPDs because they did not undermine or negate the

HIA’s vesting language for health care benefits for retirees and surviving spouses.” (ECF No. 115,

Pls.’ Reply 4.) In Bender, it was this “qualified” aspect of the reservation of rights language in that

case, circling directly back to the CBA, that led the court to conclude that it did not preclude vesting. 

In order for a reservation of rights clause to preclude the finding of an intent to vest, it must

be “sufficiently unqualified so as to fairly be expected to prompt an immediate protest by the union.” 

Bender, 681 F.3d at 265. In this case, Plaintiffs’ suggestion that the reservation of rights language

was of no concern to the Union because it clearly circled back to the HIA is undercut by Ms.

Champagne’s testimony regarding her comments on a 1995 draft of the HIA. Although Ms.

Champagne approved the reservation of rights language in 1992, in fact she believed that the

language directly contravened an intent to vest. In her comments on a draft of the 1995 HIA, which

contained identical reservation of rights language, Ms. Champagne registered a staunch protest to

the very same language that she had passed on in 1992:

Q: Can you turn to page 103? At the bottom there’s a section,

“Future of the Plan,” section. Why does the first paragraph

have lines running through it?

A: Because – one of the things that I was trying to do in this

document was totally clean it up . . . [a]nd what this says in

terms of the future of the plan, is that it reserves the right to

modify, amend, suspend or terminate the plan – or the group

policies therein in accordance with provisions of the Health

Insurance Agreement. And my thing is saying the Company

must replace terminated because benefits must be continued.

And, again, it’s a question of getting away from the language. 

They just can’t terminate a policy and leave it go. They have

to have some provision for continuing the benefits.

Q: Can I ask you to get out Exhibit 19 again and turn to page

121? My question is how does the Future of the Plan section

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in the signed 1989 document differ from the language in the

draft ‘92 Agreement?

A: It’s the same.

(ECF No. 98, Defs.’ Mot. Ex. 19, Champagne Dep. 130-31.)

Here, the Union representative, who was firmly of the belief that Borg Warner promised

healthcare benefits that were vested for life, interpreted this language as directly contradicting that

guarantee. Yet, despite Hess’s belief that this language was inconsistent with an intent to vest, the

language remained in every iteration of the HIA, supporting Borg Warner’s position that it reserved

the right in the HIA to “terminate” benefits at the expiration of each HIA. This extrinsic evidence

demonstrates that this language prompted a protest from the Union, but the Union never obtained

a modification of this language. 

 Plaintiffs also submit that the testimony of Borg Warner lawyer Regis Trenda about the

drafting of the last paragraph of Exhibit 3 to the 1990 ACME Agreement, i.e. the “agreement to

disagree,” supports their contention that Borg Warner believed that the retiree health care benefits

vested for life. Trenda testified that before the language ultimately adopted was agreed to, Jack

Reising, the Borg Warner Human Resources Manager involved in negotiation of the 1989 HIA, sent

Trenda language that acknowledged and agreed that the post-retirement benefits are guaranteed for

the lifetime of the retiree. (ECF No. 112, Pls.’ Resp. Ex. 3, Trenda Dep. 151.) Trenda testified that

he talked to Mr. Reising and made him aware of the company’s position that there is no guaranteed

lifetime post retirement health care benefits. Id. In his deposition, Mr. Reising testified that he

never believed that the company had agreed to lifetime vested benefits and that he may have

provided Trenda with a Union proposal that sought to have that language adopted as part of the

process of trying to move the discussions of the task force forward but that he, Reising, never

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believed that the company had ever agreed to vested lifetime benefits. (ECF No. 112, Pls. Resp. Ex.

4, Reising Dep. 98-104.) Indeed, on August 4, 1989, Reising sent a letter to Allan Dulaney, the

chairman of the negotiating committee for the Union, that the “Company is not obligated to continue

health insurance coverage for retirees and their dependents. However, the Company will continue

through September, 1989 all coverages applicable to retirees, except prescription drug coverage .

. . .” (ECF No. 109-1, Defs.’ Resp. Ex. 26, Aug. 4, 1989 Letter from Reising to Dulaney.) 

Shortly thereafter, Reising wrote a letter explaining the Company’s position on retiree health

care benefits to retirees and surviving spouses:

The Union has said that your insurance coverages are a lifetime benefit which may 

not be unilaterally eliminated or discontinued. Our attorneys have advised the UAW

and us that the Union’s position is not supported by either the insurance agreement

or the most recent court decisions.

ECF No. 109-1, Defs.’ Resp. Ex. 27, Sept. 14, 1989 Letter from Reising to Retirees/Survivors. This

extrinsic evidence is equivocal on the issue of Reising’s understanding as to whether retiree health

care benefits were lifetime vested. 

Plaintiffs also submit that the Retirement Summaries provided to employees when they

applied for retirement are “replete with references to the tie” between the survivor pension option

and entitlement to health care benefits and generally suggested the continuing nature of fully paid

retiree health insurance. For example, the 1989 Retirement Income Booklet provided:

Group Insurance at Retirement

Hospital and Medical Insurance Benefits - Your hospital and medical expense

coverage will be continued after your retirement pursuant to the Health Insurance

Agreement between [Borg Warner] and [the Union]. The Company pays the full cost

of such coverage for “retirees and their eligible dependents” according to the terms

of the Health Insurance Agreement. 

ECF No. 104, Pls.’ Mot. Ex. 22, p. 17.) 

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The 1990 and 1995 Retirement Summary Booklets provided that, with regard to Health

Insurance:

After retirement, you will no longer be eligible for dental or hearing aid insurance

coverage.

Hospital, medical, surgery, diagnostic and prescription drug will convert to the

Retiree Health Plan. At age 65 you will be eligible for Medicare. Your health

agreement has automatic integration with Medicare. You will continue to have the

group insurance, however, the Medicare payments will be deducted from our normal

allowance.

ECF No. 104, Pls.’ Mot. Exs. 22-26. Plaintiffs suggest that for an employee who retired at age 55,

the promise of health care benefits at the time of Medicare eligibility would be illusory if benefits

did not survive the expiration of each HIA. 

Plaintiffs also rely on the letters that were sent to surviving spouses informing them that their

company-paid health insurance would continue without an end-date, after the death of their spouse,

unless they remarried. These spouse letters explained the various benefits that the surviving spouse

would receive, including a monthly pension amount for a “lifetime,” and health insurance benefits

that would “continue at no cost unless you remarry.” Upon remarriage, coverage “would be

cancelled.” (Pls.’ Mot. Ex. 28.) 

Plaintiffs suggest that this extrinsic evidence confirms an intent to continue health care

benefits for life. Borg Warner replies that none of this evidence specifically promises that health

care benefits would continue to be provided “until death” or “forever” or would be “inalterable.”

While several of the Plaintiffs and the UAW negotiators testified to their belief and understanding

that retiree health care benefits were guaranteed inalterable for a lifetime, in fact Plaintiffs have not

produced a document generated in connection with the 1989 CBA or HIA, or any subsequent

iteration thereof, where such an explicit promise was made. Former employee LaRue Cross

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testified that he believed, and was told at the time he retired, that his benefits would remain

unchanged for the rest of his life. (ECF No. 109, Defs.’ Resp. Ex. 34, Deposition of LaRue Cross,

56-59.) However, the insurance checklist that Mr. Cross signed when he retired in June, 2005

expressly stated that “[c]urrently the premiums” for his health care benefits were being paid by the

Company but that his health care “[b]enefits [were] subject to future contract negotiations.” (ECF

No. 109, Defs.’ Resp. Ex. 32.) 

Notably, “lifetime” language does appear in a draft (not an executed copy) of a 1986

insurance booklet: “Section VII - Termination of Insurance: Your health insurance is continued

until your death - unless you request termination of insurance.” (ECF No. 103, Pls.’ Mot. Ex. 30,

1986 Draft of Insurance Booklet.) No such “until death” language appears in the 1989 CBA or HIA

or in subsequent HIAs. Indeed, a contrary intent was made known to the UAW and to retirees long

before agreement was reached in the October 27, 1989 CBA and HIA. See September 14, 1989

Letter from Jack Reising, Borg Warner’s Vice President of Human Resources, informing retirees

and survivors that the cost of health care was spiraling out of control and that if the trend continued,

the company would no longer be able to provide retirees and survivors with any health benefits. 

(ECF No. 109, Defs.’ Resp. Ex. 27, Sept. 14, 1989 Letter.) 

In the 1990 ACME Agreement, executed by both the UAW and Borg Warner, which

expressly modified and continued the 1989 CBA and which was in fact executed before the parties

actually signed the 1989 CBA (an event that did not occur until December, 1992 although the parties

performed under the 1989 CBA prior to that date), the parties unambiguously utilized “language that

is incompatible with a promise to create vested, unchangeable benefits.” Witmer, 694 F.3d at 776. 

Plaintiffs characterize the 1990 ACME agreement as an after-the-fact attempt to undo a promise that

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had been made in the 1989 CBA and HIA. They accuse Borg Warner of trying to accomplish in this

lawsuit what they could not accomplish in bargaining. At a minimum, the “agreement to disagree”

that became a part of the 1990 ACME Agreement clarifies that neither party conceded the other

parties’ interpretation of the provisions of the CBAs and the HIAs. Through that agreement, Borg

Warner clearly communicated its intention not to vest retirees’s healthcare benefits, leaving to

another day the question of whether the language to which they agreed in 1989, and which continued

in each subsequent iteration of the HIA, in fact made such a promise. The parties did “kick the can

down the road,” leaving to another day the fight over which parties’ interpretation would prevail. 

In summary, several of the indicia recognized by the Sixth Circuit as indicative of an intent

to vest are present here, i.e. (1) tying of pension and healthcare eligibility, (2) specific durational

language as to certain non-retirees, (3) negotiation of less favorable benefits for future retirees while

leaving existing retirees’s benefits unchanged. However, there are also indicia of an intent to not

vest. First, the termination provisions of the HIA specifically refer to retiree benefits, i.e. section

2(M)(2)(e), and each of the Exhibits of the HIA, many of which address specifically retiree

healthcare benefits, incorporate this same termination provision. But the parties offer reasonable

competing interpretations of this provision, which the extrinsic evidence does little clarify. Thus,

unlike Golden, Yard-Man, Bender and Prater, this case has the potential to present the exception

hypothesized by those cases in which the durational language would apply not just to the agreement

but specifically to retiree health care benefits under that agreement. 

Further, despite Plaintiffs’ protestation that the language of the ROR was not negotiated, the

ROR in this case appears in the HIA, as part of the formally executed agreement and before the final

signature page. If not negotiated, at the very least it is undisputed that the SDI was reviewed and

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not objected to by the Union prior to the formal execution of the HIA in which it appears. And the

reservation of rights contained in the SDI, reasonably interpreted, could be deemed sufficient to have

put the Union on notice that if it believed its benefits to be vested, it ought to have registered a

significant protest. Not only could this language “fairly be expected to prompt an immediate

protest,” see Bender, 681 F.3d at 265, but in fact years after it was reviewed and approved by the

Union in 1992, it did prompt such a protest. Ms. Champagne’s objection to this language in her

review of the 1995 HIA on behalf of the Union demonstrates her concern that the reservation of

rights language could be construed as directly at odds with a promise of vested benefits. 

Finally, the Court concludes that a reading of the plain language of the 1990 ACME

“agreement to disagree” is not dispositive of either side’s claim in this fight. The “agreement to

disagree” is an unequivocal statement by Borg Warner beginning in 1989, over two decades before

the shutdown of the Muncie plant, denying that the 1989 CBA and HIA obligated it to provide

health care benefits to these Plaintiffs for life and an equally strong statement by the Union that it

interpreted the 1989 the controlling collectively bargained language differently. Again, the extrinsic

evidence does little to clarify the parties’ intent in executing the 1990 ACME Agreement,

necessitating further development of these facts at trial. 

IV. CONCLUSION

Given the intractable ambiguity of the contract language, and viewing the facts on these cross

motions for summary judgment in the light most favorable to each of the non-moving parties,

including a close examination of the extrinsic evidence, the Court concludes that genuine issues of

material fact exist on the question of the parties’ intent to vest (or not) retiree health care benefits. 

Here, as in Zino, viewing the facts in the light most favorable to each of the cross-moving parties,

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ambiguity regarding the parties’ intent remains after an examination of the relevant CBA and HIA

language, including the 1990 ACME Agreement. 2013 WL 4544518, at *7-9 (“[d]iscerning no clear

answer in the negotiated documents” and turning to an examination of extrinsic evidence). Also,

as in Zino, the Court has examined the extrinsic evidence “and finds that it points in both

directions.” Id. at *9. Accordingly, summary judgment is not appropriate for either party and the

issue of whether Plaintiffs’ health care benefits were intended to be lifetime vested must proceed

to trial.

Accordingly, the Court DENIES Plaintiffs’ Motion for Summary Judgment and DENIES

Defendant’s Motion for Summary Judgment. 

IT IS SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: February 27, 2014

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each attorney or party

of record herein by electronic means or first class U.S. mail on February 27, 2014.

s/Deborah Tofil 

Case Manager

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