The Honorable Carol E. Jackson, United States District Judge 1

for the Eastern District of Missouri.

___________

No. 95-2947

___________

Karen Wald, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Southwestern Bell Corporation *

Customcare Medical Plan; *

Southwestern Bell Corporation; *

The Prudential Insurance *

Company of America, *

*

Appellees. *

___________

 Submitted: February 16, 1996

 Filed: May 15, 1996

___________

Before WOLLMAN, HEANEY, and MAGILL, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Karen Wald appeals from the district court's grant of summary

1

judgment to Southwestern Bell Corporation Customcare Medical Plan (the

Plan), Southwestern Bell Company (Southwestern Bell) and The Prudential

Insurance Company (Prudential) in this action brought under the Employee

Retirement Income Security Act, 29 U.S.C. § 1001 et seq. (ERISA). We

affirm.

I.

Wald was a participant in a self-insured employee benefit plan

sponsored by Southwestern Bell. Prudential was the plan
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administrator. Wald suffers from ovulatory menstrual dysfunction and does

not ovulate on a regular basis. In May 1991 she decided to undergo gamete

intra-fallopian transfer (GIFT) in an attempt to become pregnant. The plan

provides at least partial benefits in some instances for surgical

procedures that are medically necessary. Section 4.8 of the plan, however,

provides in relevant part, that:

Notwithstanding anything contained in this Plan to the

contrary, the following items shall not be covered by the Plan:

. . . .

DD. Charges for actual or attempted impregnation or

fertilization, involving either a Covered Individual or a

surrogate as a donor or recipient, extrauterine conception, or

pregnancy of a surrogate mother.

In preparation for the GIFT procedure, Wald received medications

called Lupron and Pergonal in January 1992 to increase production of the

egg follicles to be harvested during the procedure. On February 5, Wald

underwent the GIFT procedure. During the surgery, Doctors Silber and Cohen

discovered excessive follicles on Wald's ovaries. They aspirated the

follicles as part of the GIFT procedure. The Lupron and Pergonal caused

Wald to develop ovarian hyperstimulation syndrome, a serious medical

condition, and she remained in the hospital until February 20, 1992.

Because of the condition she developed, Wald would have needed the

procedure to aspirate the follicles regardless of whether she underwent the

complete GIFT procedure.

Wald filed a claim for medical benefits to cover the services.

Prudential initially denied the claims related to both the GIFT procedure

and Wald's subsequent hospitalization, reasoning that the plan did not

provide coverage for actual or attempted impregnation or fertilization or

for any resulting complications. Upon reconsideration, however, Prudential

determined that because the
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ovarian hyperstimulation was a direct consequence of the Pergonal, an

eligible medication, coverage would be provided for the hospitalization

from February 6 through February 20. Prudential reaffirmed its decision

that the hospital and physician charges incurred on February 5 were

excluded, as those charges involved actual or attempted impregnation or

fertilization.

Wald appealed Prudential's decision to deny benefits for services

rendered on February 5, contending that the denial of medical coverage for

the GIFT procedure was discriminatory and would preclude her from receiving

the best available medical treatment. Prudential denied the appeal,

whereupon Wald submitted a letter on July 2, 1992, contending that the

February 5 expenses were incurred as a result of complications from

Pergonal and would have been incurred regardless of the GIFT procedure.

Prudential again denied benefits. On December 7, 1992, Dr. Cohen sent a

letter to Prudential in which he explained that the February 5 charges

would have been incurred to treat Wald's reaction to Pergonal, whether or

not the GIFT procedure was performed. Prudential reviewed the letter, but

did not change its decision.

Wald alleged in Count I of her proffered amended complaint that

Southwestern Bell, the Plan, and Prudential had wrongfully denied her

claim. In Count II, she alleged that Prudential had breached its fiduciary

duty in reviewing her claim. The district court granted Wald leave to file

the amended complaint as to Count I, but denied her leave to file Count II,

finding that a claim for breach of fiduciary duty under ERISA may be

brought only where the duty is owed to the plan itself. The district court

then granted summary judgment on Count I to Southwestern Bell, the Plan,

and Prudential, finding that Prudential's interpretation was not contrary

to the clear language of the plan.

Wald argues on appeal that the district court erred in denying her

leave to file Count II and in granting summary judgment against
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her on Count I. Wald challenges only the administrator's interpretation

of the plan with respect to her claim; she does not challenge the

lawfulness of the plan's exclusion of fertility treatments in general.

II.

We review a district court's decision to deny leave to amend a

complaint for an abuse of discretion. Fuller v. Secretary of Defense, 30

F.3d 86, 88 (8th Cir.), cert. denied, 115 S. Ct. 583 (1994). Leave to

amend should be freely granted by the district court. Id. Leave may be

denied, however, if amendment would be futile. Williams v. Little Rock

Mun. Water Works, 21 F.3d 218, 225 (8th Cir. 1994).

The district found that adding Count II would be futile because an

action for breach of fiduciary duty under ERISA may be brought only where

the breach is of a duty owed to the plan itself. Wald argues that the

district court abused its discretion in denying the amendment, in that

individual plan beneficiaries have a right of action for breach of

fiduciary duty under ERISA. Howe v. Varity Corp., 36 F.3d 746 (8th Cir.),

clarified, 41 F.3d 1263 (8th Cir. 1994), aff'd, 116 S. Ct. 1065 (1996).

We may affirm the district court's decision on any ground supported

by the record. Monterey Dev. Corp. v. Lawyers Title Ins. Corp., 4 F.3d

605, 608 (8th Cir. 1993). Putting aside the district court's views

concerning an individual plan beneficiary's right to bring an action for

breach of fiduciary duty, the court correctly determined that Wald did not

state a cause of action.

Wald requested in her proposed amended Count II that the court enjoin

Prudential to take steps to pay Wald and that the court declare that

Prudential breached its fiduciary duty. She also requested attorney's fees

for prosecuting the claim. She brought
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her claim pursuant to ERISA sections 502(a)(2), 502(a)(3), and 502(g),

which provide, in relevant part:

(a) A civil action may be brought--

. . . .

 (2) by the Secretary, or by a participant, beneficiary or

fiduciary for appropriate relief under section [409, 29 U.S.C.

§] 1109 of this title;

 (3) by a participant, beneficiary, or fiduciary (A) to enjoin

any act or practice which violates any provision of this

subchapter or the terms of the plan, or (B) to obtain other

appropriate equitable relief (i) to redress such violations or

(ii) to enforce any provisions of this subchapter or the terms

of the plan;

. . . .

(g)(1) In any action under this subchapter . . . by a

participant, beneficiary, or fiduciary, the court in its

discretion may allow a reasonable attorney's fee and costs of

action to either party.

29 U.S.C. §§ 1132(a)(2), 1132(a)(3), and 1132(g).

In Varity Corp. v. Howe, 116 S. Ct. 1065 (1996), the Supreme Court

recently clarified the circumstances under which an individual may sue for

breach of fiduciary duty under ERISA. In that case, individuals sued their

former employer, which had induced them to join the plan of a subsidiary

by misrepresenting to the employees that they would receive the same

benefits from the subsidiary. The Court held that the employees were

entitled to injunctive relief reinstating them to the former employer's

plan under section 502(a)(3). In reaching its decision, the Court

distinguished its previous holding in Massachusetts Mut. Life Ins. Co. v.

Russell, 473 U.S. 134 (1985), primarily on the ground that Russell dealt

with section 502(a)(2), rather than section 502(a)(3). Howe, 116 S. Ct.

at 1076. Under Russell, Wald does not have an individual cause of action

under section 502(a)(2). See
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Russell, 473 U.S. at 142.

The Court also noted that section 502(a)(3) authorizes only

"appropriate" equitable relief. The Court stated that "where Congress

elsewhere provided adequate relief for a beneficiary's injury, there will

likely be no need for further equitable relief, in which case such relief

normally would not be `appropriate.'" Id. at 1079. Because Wald is

provided adequate relief by her right to bring a claim for benefits under

section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), as she did in Count I, and

she seeks no different relief in Count II of her complaint, equitable

relief would not be appropriate in her case. Thus, she does not have a

cause of action under section 502(a)(3).

III.

The district court found that Prudential did not abuse its discretion

in interpreting the plan to exclude the GIFT procedure. We review a

district court's grant of summary judgment de novo, viewing the record in

the light most favorable to the non-moving party. Marshall v. UNUM Life

Ins. Co., 13 F.3d 282, 283 (8th Cir. 1994).

It is undisputed that the plan at issue grants Prudential

discretionary authority to interpret the plan. Thus, we review

Prudential's decision as plan administrator for an abuse of discretion.

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Donaho v.

FMC Corp., 74 F.3d 894, 898 (8th Cir. 1996). We reject Wald's argument

that ERISA's requirement that a summary plan description (SPD) be

sufficiently comprehensive to apprise participants of their rights under

the plan, see 29 U.S.C. § 1022(a)(1), requires the SPD to contain a

description of the
 Wald's motion for leave to file a supplemental appendix

2

containing a copy of the Summary Plan Description is granted.

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administrator's discretion.2

Wald argues that because Prudential failed to conduct a full and fair

review of her claim, the deferential standard of review should not apply.

Heightened review may apply if the beneficiary shows that a serious

procedural irregularity existed which caused a serious breach of the

administrator's duty to the plan beneficiary. Buttram v. Central States,

S.E. & S.W. Areas Health & Welfare Fund, 76 F.3d 896, 900 (8th Cir. 1996).

The deferential standard will apply, however, unless the beneficiary comes

forward with evidence establishing that the administrator acted under a

conflict of interest, dishonestly, with an improper motive, or without

using judgment. Id. at 899-900.

Wald notes that Prudential did not obtain all of her hospital records

and did not provide her with detailed reasons regarding the denial of her

benefits. We interpret these assertions as alleging that Prudential failed

to use judgment in rendering its decision or that its decision was

arbitrary. The record shows, however, that Prudential conducted a full and

fair review of the information before it and clearly explained to Wald that

she was denied coverage because the plan specifically excluded attempted

impregnation or fertilization. Cf. Cox v. Mid-America Dairymen, Inc., 965

F.2d 569, 573-74 (8th Cir. 1992) (trustee failed to provide adequate

explanation by simply stating beneficiary had not provided sufficient

evidence). Although Wald did not specifically raise the medical necessity

of the GIFT procedure until the internal appeal process was exhausted,

Prudential nevertheless reviewed the additional documents. Wald's

assertions that Prudential conducted an inadequate review are belied by the

fact that Prudential reversed its initial decision not to provide benefits

for her hospitalization from February 6 through 20. We
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conclude, therefore, that the abuse of discretion standard governs our

review of Prudential's decision.

The abuse of discretion standard requires us to determine whether the

plan administrator's decision was reasonable; that is, whether a reasonable

person could have reached the same decision. Donaho, 74 F.3d at 899. In

determining whether Prudential's interpretation was reasonable, we consider

five factors: (1) whether Prudential's interpretation is consistent with

the plan's goals; (2) whether the interpretation renders any of the plan's

language meaningless or internally inconsistent; (3) whether the

interpretation conflicts with the substantive or procedural requirements

of ERISA; (4) whether Prudential has interpreted the words at issue

consistently; and (5) whether the interpretation is contrary to the plan's

clear language. See Finley v. Special Agents Mut. Ben. Ass'n, 957 F.2d

617, 621 (8th Cir. 1992).

We find that Prudential's interpretation is consistent with the goals

of the plan. Although one goal of the plan is to provide benefits for

procedures that are medically necessary, another goal is to exclude

benefits for fertility procedures, as the terms of the plan expressly

provide. The record supports Prudential's position that Wald's purpose in

undergoing the procedure was to become pregnant and that the doctors did

not know going into the surgery that the procedure was medically necessary.

An evaluation of the purpose of the surgery is consistent with the plan's

goals.

The GIFT procedure took place on February 5, the date set in advance

before there was any indication that Wald's health was at risk, and it was

paid for by Wald in advance. Dr. Cohen testified in his deposition that

on February 6, 1992, he suspected that there was possible ovarian

hyperstimulation syndrome and elaborated that, "I think I expected it

before that, even prior to the aspiration." He also testified, however,

that the doctors treating Wald "were sensitive to the fact that [she] might

develop hyperstimulation,"
 We also find that Prudential was reasonable in excluding the 3

hospitalization on February 5, as well as the GIFT procedure. Dr.

Cohen testified in his deposition that normally after the GIFT

procedure, the patient is discharged the same day or the next day.

It was thus reasonable for Prudential to find the hospitalization

was related to the procedure, rather than to complications from the

Pergonal.

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and that they gave her albumen at the time of the surgery in an attempt to

"ward [the hyperstimulation] off."

Dr. Cohen's notes following surgery indicate that the surgery went

"without difficulty," although during the surgery it was noted that the

ovaries were "markedly enlarged." In addition, Dr. Thomas Pohlman was

asked for a consultation by Dr. Cohen, and he stated in his consultation

notes that "[t]he harvesting went uneventfully. However, postop [Wald]

developed increasing ascites, was found to have markedly enlarged ovaries

and felt to have ovarian hyperstimulation syndrome."

Dr. Cohen's letter to Prudential, which stated that the Pergonal, and

not the GIFT procedure, was the reason for the medical expenses, is not

supported by the record. Thus, we find that Prudential's interpretation 3

is consistent with the goals of the plan.

Although the plan elsewhere provides coverage for surgery that is

medically necessary, Prudential's interpretation of the exclusion for the

GIFT procedure does not render any language in the plan meaningless or

internally inconsistent. The provision excluding fertilization expressly

provides that the exclusion applies "[n]otwithstanding anything contained

in this Plan to the contrary."

ERISA does not create any substantive entitlement to employerprovided health benefits, Curtiss-Wright Corp. v. Schoonejongen, 115 S. Ct.

1223, 1228 (1995), and Wald does not allege that the
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plan is unlawful in excluding benefits for fertility procedures. The

procedural requirements of ERISA regarding the review process were met, as

discussed earlier. The record contains no admissible evidence showing that

Prudential has not interpreted the plan consistently. See Davidson &

Schaaff, Inc. v. Liberty Nat'l Fire Ins. Co., 69 F.3d 868, 871 (8th Cir.

1995) (hearsay testimony inadmissible to support summary judgment

opposition).

We conclude that because Prudential's interpretation satisfies

Finley's five-factor test, its decision to exclude benefits for the

procedure was reasonable and thus must be upheld.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.