1 United States Court of Appeals,

Fifth Circuit.

Nos. 96-10797 and 96-10979.

R. Scott NICKEL, as Plan Benefit Administrator of the Thrift Plan

of Phillips Petroleum Company; Thrift Plan of Phillips Petroleum

Company, Plaintiffs-Counter Defendants-Appellees,

v.

Estate of Lurline ESTES, Defendant-Cross Defendant-Appellee,

Estate of Annie J. Layman, Defendant-Counter Claimant-Appellant,

Clifford D. Estes; Lisa C. Williams, Defendants-Cross

Defendants-Appellees,

Tom Fowler; C.W. Fowler; R.L. Layman; Barbara Peeples,

Defendants-Counter Claimants-Appellants.

Sept. 22, 1997.

App eal from the United States District Court for the Northern

District of Texas.

Bef ore REYNALDO G. GARZA, SMITH and EMILIO M. GARZA, Circuit

Judges.

EMILIO M. GARZA, Circuit Judge:

In this case, a decedent's cousins (including a step-cousin)

appeal the district court's decision that the decedent's children

are entitled to his pension benefits. We reverse and render

judgment in favor of the cousins.

I

Benny Brooks Estes ("Benny"), a former employee of Phillips

Petroleum Company ("Phillips"), had a vested interest in Phillips'

Thrift Plan. Benny designated his father and mother—Onis B. Estes

("Onis") and Lurline H. Estes ("Lurline")—as equal primary

beneficiaries of his plan benefits, but did not list any contingent1 On July 28, 1997, the closing price for a share of Phillips

on the New York Stock Exchange was $46.125. We calculate the value

of the proceeds using this closing price.

2 Under the plan, an "entitled Beneficiary" is "a Beneficiary

who has become entitled to an interest in the Plan due to a Participant's death." A "Beneficiary" is "a natural person, or a

legal entity, estate or corporation, designated to receiv e any

benefit under the Plan in the event of the Participant's or entitled Beneficiary's death." A "Participant" is the person who

had the original interest in the plan, in this case Benny.

2 beneficiaries. Benny's only sibling passed away in 1930. Also,

Benny was divorced and had two children, Lisa Williams ("Lisa") and

Clifford Estes ("Clifford") (jointly, "the Estes defendants").

Benny died on November 14, 1992, and was survived by Lurline,

Lisa, and Clifford (Onis predeceased Benny). At the time of

Benny's death, the plan proceeds consisted of about 6,881 shares of

Phillips and about $4,725.50 in cash. The proceeds are currently

worth about $322,112. 1

Lurline became the "entitled beneficiary" of these proceeds. 2

However, Lurline died just three weeks after Benny. Lurline never

received any of the proceeds or designated a beneficiary for them.

Moreover, she did not hav e any surviving spouse, children, or

parents; besides her surviving grandchildren (the Estes

defendants), she had only a surviving siste r, Annie Jane Layman

("Annie").

Section 1(B) of article XII of the plan provides that

[e]ach participant or entitle d Beneficiary may designate a

primary Beneficiary or Beneficiaries, and a contingent

Beneficiary or Beneficiaries to receive distributions due upon

the person's death.... After receipt by the [Phillips' Thrift

Plan] Committee such Beneficiary designation shall take effect

a s of the date the form was signed by the Participant or

entitled Beneficiary, whether or not he is living at the time3

of such receipt.... If no such designation is on file ... the

Participant's or entitled Beneficiary's surviving spouse, surviving children in equal shares, surviving parents in equal

shares, surviving sisters and brothers in equal shares, or his

estate, in that order of priority, shall be conclusively

deemed to be the Beneficiary designated to receive such

benefits.... If any Beneficiary of an entitled Beneficiary,

whether primary or contingent, dies before receiving the full

dis tribution of any interest he has become entitled to, his

estate shall receive the remaining distribution.

Given this language, Annie would presumably be "conclusively"

entitled to receive the full proceeds of the plan once Lurline

died. However, Annie passed away seven months after Lurline, and,

like Lurline, Annie never received any plan proceeds before her

death. Moreover, she left behind a will naming four equal

beneficiaries—Barbara Ann Peeples ("Barbara"), Tom Fowler ("Tom"),

C.W. Fowler ("C.W."), and R.L. Layman ("R.L.") (collectively, "the

Layman defendants"). Barbara, Tom, and C.W. are Annie's children

from her first marriage, and Benny's cousins; R.L. is Annie's

stepson from her second marriage, and Benny's step-cousin. Under

the plan, Annie's estate would apparently receive the entire amount

of the proceeds. Then, assuming Annie left a valid will, the

proceeds would be distributed equally among the Layman defendants.

Several months after Benny expired, the probate court

appointed Marcus Armstrong as independent executor of Lurline's

estate. Shortly after his appointment, Armstrong executed on

behalf of Lurline's estate a disclaimer of all of Lurline's

interest in the plan. The Phillips' Thrift Plan Committee received

a copy of the disclaimer within nine months of Benny's death.

Section 4 of article XII of the plan states that

[i]n the event that a Beneficiary or an entitled Beneficiary4

signs and delive rs to the Committee a written disclaimer of

Plan be nefits which satisfies the [Internal Revenue] Code's

requirements to be tax qualified, and such benefits, but for

the disclaimer, would otherwise pass to such person as a

result of the death of a Participant or entitled Beneficiary,

the per son executing such disclaimer of benefits shall be

deemed to have failed to survive the deceased Participant or

entitled Beneficiary from whom he otherwise would have taken.

For such disclaimer to be considered effective for purposes of

the Plan, the d isclaimer must be received by the Committee

prior to the earlier of the date which is 9 months after the

death of the Participant or entitled Beneficiary, or the date

on which such person has requested any Plan transaction

involving such Plan benefits. In the event that Plan benefits

are distributed to the Beneficiar y or entitled Beneficiary

prior to the receipt of such disclaimer, pursuant to the other

terms of the Plan, such distribution shall completely release

and relieve [Phillips and others] on account of and to the

extent of any payment made before receipt of the disclaimer.

There is no dispute that the disclaimer was written, signed,

timely, and satisfied the applicable Code requirement s. The

parties also agree that, assuming t he disclaimer was otherwise

valid, Lurline would be deemed to have predeceased Benny and the

plan's proceeds would pass to the Estes defendants. The issue,

then, is simply whether the disclaimer was valid. If it was, the

Estes defendants should get the proceeds. If not, the Layman

defendants should get them.

Because Phillips did not know whether the disclaimer was

valid, it was unsure whether the Estes defendants or Layman

defendants should receive the plan's proceeds. Thus, R. Scott

Nicke l, the plan benefit administrator of the Phillips' Thrift

Plan, brought an interpleader action agains t Lurline's estate,

Annie's estate (of which Barbara is independent executrix), Lisa,

Clifford, Barbara, Tom Fowler, C.W. Fowler, and R.L. Layman. Lisa

and Clifford then filed counterclaims against Nickel and the plan,5

and the Layman defendants filed counterclaims against the Estes

defendants and Lurline's estate.

The Estes defendants and Layman def endants both moved for

summary judgment. The district court agreed with the Estes

defendants, granting their motion for summary judgment and denying

the Layman defendants' motion. On appeal, the Layman defendants

argue that the district court erred. Specifically, they assert

that (1) the Employee Retirement Income Security Act ("ERISA"), 29

U.S.C. §§ 1001 et seq., preempts the state statutes authorizing the

appointment of Armstrong as executor and permitting the disclaimer

and (2) Armstrong could not execute a valid disclaimer under the

plan because he was not a "Beneficiary or an entitled Beneficiary."

We examine these arguments in turn.

II

The Layman defendants contend that the district court erred

in determining that ERISA does not preempt the state statutes that

authorize the appointment of Armstrong as executor and the

disclaimer that Armstrong made on behalf of Lurline's estate. We

review de novo a district court's preemption analysis under ERISA.

Hook v. Morrison Milling Co., 38 F.3d 776, 780 (5th Cir.1994).

ERISA states that it "shall supersede any and all State laws

insofar as they may now or hereafter relate to any employee benefit

plan...." 29 U.S.C. § 1144(a). The ERISA preemption provision has

a "broad scope" and "expansive sweep." A state law " "relate[s]

to' a covered employee be nefit plan for purposes of [§ 1144(a) ]

"if it has a connection with or reference to such a plan.' "3 "Independent executor" means the pers o nal representative of

an estate under independent administration. T EX

. P ROB

. C ODE A NN

. §

3(q). "Independent executor" includes the term "independent

administrator." Id.

6 District of Columbia v. Greater Washington Bd. of Trade, 506 U.S.

125, 129, 113 S.Ct. 580, 583, 121 L.Ed.2d 513 (1992) (quoting Shaw

v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-

2900, 77 L.Ed.2d 490 (1983)). ERISA may preempt a related state

law even if the state law is not specifically intended to regulate

ERISA-covered plans. I ngersoll-Rand Co. v. McClendon, 498 U.S

.

133, 139, 111 S.Ct. 478, 483, 112 L. Ed.2d 474 (1990). However,

ERISA's preemptive scope has limits. "Some state actions may

affect employee benefit plans in too tenuous, remote, or peripheral

a manner to warrant a finding that the law "relates to' the plan."

Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21.

The district court determine d that state law was merely

"peripheral" to the plan and thus would not be preempted under

ERISA. However, it looked to Texas Probate Code § 145 e t seq. and

Texas Probate Code § 37A to interpret the plan an d decide that

Armstrong's disclaimer was valid. Texas Probate Code § 145 e t seq.

governs the appointment of independent administrators; the probate

court appointed Armstrong ind ependent executor pursuant to these

provisions. 3 Texas Probate Code § 37A permits any personal

representativ e of a decedent with court approval or independent

executor of a decedent without prior court approva l to disclaim

property that the decedent would be entitled to receive as a

beneficiary. The statute goes on to provide that the disclaimer7

will relate back to the death of the person making the decedent a

beneficiary and will ensure that the property passes as if the

later decedent (i.e., the person on whose behalf the disclaimer is

made) had predeceased the earlier decedent (i.e., the person making

the later decedent a beneficiary).

Putting aside the merits of the district court's preemption

analysis, we dete rmine that the district court erred by reaching

the preemption issue in the first place. As the Estes defendants

concede in their brief, we can decide the validity of the

disclaimer without resort to state law. Indeed, we can resolve the

validity of the disclaimer without going beyond the terms of the

plan itself. As the Sixth Circuit has noted, "ERISA plans are to

be administered according to their controlling documents.... [I]f

the designati on on file controls, administrators and courts need

look no further than the plan documents to determine the

beneficiary...." M cMillan v. Parrott, 913 F.2d 310, 312 (6 t h

Cir.1990); see also MacLean, 831 F.2d at 728 (finding that state

testamentary law "interfere[d] with the administration of the Plan

and violate[d] its terms" since the plan provided "a valid method

for determining the beneficiary").

In short, we determine that the district court did not need to

go beyond the plain language of the plan to r esolve the parties'

dispute. Thus, the district court erred not only in looking to

state law but in conducting a preemption analysis at all.

III

The Layman defendants next maintain that Armstrong could not8

execute a val id disclaimer under the plan because he was not a

"Beneficiary or an entitled Beneficiary." We review d e novo

questions of law, such as whether an ERISA plan's terms are clear

and, if they are, how those terms should be interpreted. S unbeamOster Co. Group Benefits Plan for Salaried and Non-Bargaining

Hourly Employees v. Whitehurst, 102 F.3d 1368, 1373 (5th Cir.1996).

We review for clear error findings of fact, such as the intent of

parties regarding an ERISA plan. Id.

The plan states that "[i]n the event that a Beneficiary or an

entitled Beneficiary signs and delivers to the Committee a written

disclaimer of Plan benefits which satisfies the [Internal Revenue]

Code's requirements to be tax qualified, and such benefits, but for

the disclaimer, would otherwise pass to such a person as a result

of the death of a Participant or entitled Beneficiary," the

disclaimer is valid. The question is whether the reference to

"Beneficiary" encompasses a personal representative, executor, or

administrator who disclaims on behalf of the beneficiary.

In answering this question, we look first to the plain

meaning of the plan. S ee Lockhar t v. United Mine Workers of

Am.1974 Pension Trust, 5 F.3d 74, 78 (4th Cir.1993) (stating that

an "award of benefits under any ERISA plan is governed in the first

instance by the language of the plan itself"). Clearly, the plan

says nothing about anyone disclaiming on behalf of the beneficiary

or entitled beneficiary. It merely states that "a Beneficiary or

an entit led Beneficiary [can disclaim by] sign[ing] and

delive r[ing] to the Committee a written disclaimer." Since9

Armstrong, rather than Lurline, signed and delivered to the

Committee a written disclaime r, that disclaimer is invalid under

t he plan. S ee Rodrigue v. Western & So. Life Ins. Co., 948 F.2d

969, 971 (5th Cir. 1991) (ruling that court cannot alter plain

meaning o f plan); s ee also Coleman v. Nationwide Life Ins. Co.,

969 F.2d 54, 57 (4th Cir.1992) (noting that courts may not

disregard plain meaning of plan) cert. denied, 506 U.S. 1081, 113

S.Ct. 1051, 1 22 L.Ed.2d 359 (1993); B ellino v. Schlumberger

Technologies, Inc., 944 F .2d 26, 30 (1st Cir.1991) (holding that

employees were entitl ed to plan benefits under plain meaning of

plan).

Our interpretation of "Beneficiary or an entitled Beneficiary"

as meaning just the beneficiary or entitled beneficiary himself (as

opposed to the beneficiary/entitled beneficiary himself o r the

personal representative of a deceased beneficiary/entitled

beneficiary) is bolstered by looking at the words immediately

preceding and following the "sign and deliver" language. The

relevant sentence reads: "In the event that a Beneficiary or an

entitled Beneficiary signs and delivers to the Committee a written

disclaimer of Plan benefits which satisfies the Code's requirements

to be tax qualified, and such benefits, but for the disclaimer,

would otherwise pass to such person as a result of the death of a

Participant or entitled Beneficiary, the pe rson executing such

disclaimer of benefits shall be deemed to have failed to survive

the deceased Participant or entitled Beneficiary from whom he

otherwise would have taken" (emphasis added). Like "Beneficiary"10

or "entitled Beneficiary," the phrases "such person" and "the

person executing such disclaimer" in this sentence cannot refer to

a personal representative of the beneficiary or e ntitled

beneficiary, but only to the benefici ary or entitled beneficiary

himself. In short, "Beneficiary or an entitled Beneficiary" can

mean nothing more than beneficiary or entitled beneficiary.

In response, the Estes defendants emphasize t he clause

following "which" in the sentence "... a Beneficiary or an entitled

Beneficiary signs and delivers to the Committee a written

disclaimer of Plan benefits which satisfies the Code's requirements

to be tax qualified ...." They contend that various Internal

Revenue Service ("Service") regulations and private letter rulings

as well as Tax Court decisions specifically permit a personal

representative to disclaim on behalf of a decedent. This, though,

is irrelevant. The plan drafters used "which" in the quoted

sentence to add a clause restricting the meaning of the antecedent

clause. S ee O XFORD E NG LISH D ICTIONARY 225 (2d ed.1989) (defining

"which" as pronoun "[i]ntroducing a clause defining or restricting

the antecedent and thus completing the sense" and offering examples

of this usage such as "[t]his is the path which leads to death").

In other w ords, the clause following "which" is an additional

requirement that must be met before a disclaimer is valid. The

Estes defendants' interpretation of the sentence would require us

to construe "which" as "or"; they want us to read the sentence to

mean either that a beneficiary signs and delivers a written

disclaimer or that a beneficiary meets the Code's requirements for11

a qualified disclaimer (one of which arguably permits a p ersonal

representative to disclaim on behalf of a decedent). We decline to

adopt this strained construction of the plan. The quoted sentence

clearly requires a beneficiary to sign and deliver a written

disclaime r that a lso meets the Code's requirements for being tax

qualified.

In addition, even if the Estes defendants could show that the

plan permits executors to disclaim on behalf of the estates of dead

beneficiaries, such a disclaimer would still be invalid. Under the

plan, Lurline ceased being the beneficiary of the proceeds the

instant she died, and the proceeds never passed to her estate. As

soon as Lurline expired, the plan designated Annie—rather t han

Lurline's estate—as beneficiary.

Article XII(1)(A) of the plan states that

[s]ubject to Paragraph B of this Section, upon the death of a Participant, or the death of a Beneficiary of a Pa rticipant

who has become entitled to an interest in the Plan due to a

Participant's death (entitled Beneficiary), prior to the

Valuation Date upon which complete distribution of his entire

account under the Plan occurs, the remaining full balance of

his account shall be payable to his designated Beneficiary....

Paragraph B then provides in pertinent part that

[i]f no [Beneficiary] designation is on file

... the

Participant's or entitled Beneficiary's

... surviving sisters

and brothers in equal shares, or his estate, in that order of

priority, shall be conclusively deemed to be the Beneficiary

designated to receive such benefits.... If any Beneficiary of

an entitled Beneficiary, whether primary or contingent, dies

before receiving the full distribution of any interest he has

become entitled t o, his estate shall receive the remaining

distribution.

After Benny's death, Lurline became the entitled beneficiary of the

proceeds. Upon Lurline's death, the proceeds became payable to her4 ERISA does not preempt state law governing passage of the

proce eds from Annie's estate to the beneficiaries of her will

because the plan does not discuss how the proceeds should pass from

a beneficiary's estate. In other words, once the proceeds pass to

Annie's estate, the plan ceases to designate a beneficiary; hence,

state law that determines who takes the proceeds under Annie's will

does not relate to the plan and is not preempted.

12 designated beneficiary. Since Lurline did not designate a

beneficiary, Annie (Lurline's only sibling)— not Lurline's

estate—became the beneficiary of the proceeds under the plan. Upon

Annie's death, Annie's estate received the proceeds since Annie was

the beneficiary of Lurlin e, an entitled beneficiary. Thus, the

proceeds should now pass under state law, pre sumably pursuant to

Annie's will. 4 Accordingly, since the proceeds never passed to

Lurline's estate, Armstrong—in his capacity as the executor of

Lurline's estate—could not have disclaimed them. He had no

authority over the proceeds at all.

The Estes defendants dispute this conclusion by pointing to a

Second Circuit opinion, Rolin v. Commissioner of Internal Revenue,

588 F.2d 368 (2d Cir.1978). Apparently, the Estes defendants

believe that Rolin stands for the proposition that an executor can

disclaim an interest on behalf of a decedent that the decedent

originally possessed but which did not pass to the decedent's

estate. In particular, they rely on the court's statement that

"since the pr inciple of retroactive renunciation is that a

disclaimer of an interest may be treated as relating back in time,

it seems irrelevant to the efficacy of that principle that the

interest has expired." Id. at 370.

In Rolin, Daniel es tablished a trust which, upon his death,13

would be divided into "Trust A" and "Trust B." His wife, Genevieve,

would receive income from the trusts for life. In addition,

Genevieve obtained the right to invade the corpus of Trust A during

her life as well as general testamentary power of appointment over

Trust A's assets. If Genevieve died without having exercised her

power of appointm ent, Trust A would merge into Trust B and the

assets would be d istributed to the Rolins' issue. Subsequently,

Daniel passed away and, four months later, so did Genevieve.

Genevieve never received income from either trust and never used

her power of appointment. Genevieve's executors then tried to

renounce Genevieve's interest in the merged trust. The Service

opposed this attempt, arguing that the executors could not disclaim

Genevieve's power of appointment because it expired at her death.

In deciding the dispute, the court noted that, under New York law,

an executor could disclaim a legacy left to a dec edent and the

disclaimer would rela te back to the date of the gift and prevent

t itle from ever divesting. The court then held that, since an

executor could disclaim a legacy, there was no reason why he could

n ot also disclaim a power of appointment, even if that power had

expired. The court reasoned that a power of appointment was just

one right in the bundle of rights constituting a fee simple, and if

an executor could disclaim the whole bundle of rights, he could

also disclaim one of the rights.

Rolin is not really on point here. First, since no ERISA plan

was involved in Rolin, the court relied heavily on New York wills

and trust law for its decision. However, we may not follow state14

law in this case because such law would "relate" to the p lan and

thus be preempted (though, of course, we decide that state law

governs the passage of the proceeds from Annie's estate). Second,

the trust agreement in Rolin specifically provided that Genevieve's

executors could renounce her interest in the trust should she die

before accepting trust benefits. Here, the plan says nothing about

a personal representative, executor, or administrator disclaiming

on behalf of a decedent. Third, while the power of appointment may

have expired at Genevieve's death, at least some interest from the

trust passed to Genevieve's estate. In other words, some rights

from the bundle of rights over the trust that Daniel bequeathed to

Genevieve passed to her estate. Given the passage of some of the

trust rights, the court held that Genevieve's executors could

disclaim all of these rights. In our case, though, n one of the

rights Lurline had over the proceeds passed to he r estate. They

all went to Annie and then Annie's estate. Fourth, even if we were

to construe Rolin as adopting the general rule that an executor can

disclaim an interest on behalf of a decedent that the decedent

originally possessed but which did not pass to the dec edent's

estate (which we do not), it would not matter here. The plan

states that plan benefits "but for the disclaimer, [must] otherwise

pass to [the entitled Beneficiary] as a resul t of the death of a

Participant...." But if Armstrong had not disclaimed the proceeds,

the entitled beneficiary would not have been Lurline or Lurline's5 Armstrong e xecuted the disclaimer before Annie expired but

did not file it until after her death.

6 We emphasize tha t we do not decide in this appeal whether

Annie's will is valid or, if it is, how the proceeds should be

distributed to the will's beneficiaries. We simply hold that the

proceeds passed to Annie's estate under the plan and thus should

now be given to Barbara for independent administration.

15 estate but, r ather, Annie or Annie's estate. 5 Under the plan,

Annie received the proceeds upon Lurline's death (i.e., Annie

became the entitled benefic iary) and, after Annie expired, the

proceeds passed to Annie's estate.

Therefore, we determine that Armstrong's disclaimer was

invalid and that the proceeds must pass according to the plan.

This means that Annie received the proceeds upon Lurline's death,

and that, after Annie expired, the proceeds passed t o Annie's

estate. Accordingly, the proceeds must now go to Barbara, the

independent executrix of Annie's estate, for distribution under the

terms of Annie's will or otherwise. 6

IV

Lastly, the Layman defendants challenge the district court's

order that they pay the plaintiffs $4,461.54 in attorneys' fees and

costs. Apparently, the district court awarded this amount to the

plaintiff s because they were merely the stakeholders in the

litigation and because the Layman defendants were "the unsuccessful

defendants in this case." We review an award of attorneys' fees

and costs for abuse of discretion. B ruce Hardwood Floors, Div. of

Triangle Pac. Corp. v. UBC, So. Council of Indus. Workers, Local

Union No. 2713, 103 F.3d 449, 453 (5th Cir.1997).16

We agree with the district court that the p laintiffs should

not bear unnecessary costs and attorneys' fees in this litigation,

a nd that the plaintiffs should be able to recover costs and fees

from the unsuccessful defendants in this case. Thus, we will award

the plaintiff s $4,461.54 in costs and fees against the Estes

defendants.

V

For the foregoing reasons, we REVERSE the judgment of the

district court and RENDER judgment in favor of the Layman

defendants. Moreover, we ORDER that the plaintiffs recover

$4,461.54 in costs and fees against the Estes defendants.

REYNALDO G. GARZA, Circuit Judge, dissenting:

The majority states that the district court erred by

conducting a preemption analysis and that the case turns on whether

Lurline Estes' executor, Marcus Armstrong, can validly disclaim her

right to proceeds from the Phillips Thrift Plan within nine months

of Benny's death, as was Lur line's right under the terms of the

plan. The majority believes that Armstrong was not a beneficiary

u nder the plan, and therefore, did not have the right to validly

disclaim the proceeds from the plan. Accordingly, the majority has

voted to reverse the decision of the district court in this matter.

While I concur with the first part of this line of reasoning, I

disagree with the majority's conclusion that Armstrong does not

have the authority to disclaim. I therefore respectfully dissent,

for the following reasons.

As the majority points out, the parties agree that the17

disclaimer satisfied the applicable Code requirements, and if the

disclaimer is otherwise valid, Lurline would be deemed to have

predeceased Benny Brooks Estes (as did Onis, Benny's father). If

the disclaimer is val id and Lurline is considered to have

predeceased Benny, the proceeds from the plan will pass to Benny's

children, the Estes defendants. If the disclaimer is not valid,

Benny's cousins, the Layman defendants, get the proceeds.

The majority states that proper interpretation of the "plain

languag e" of the plan can lead us to proper resolution of this

dispute, and I agree. The key issue is whether the reference to

"Beneficiary or an entitled Benef iciary," as listed in the plan,

includes a personal representati ve or executor who disclaims on

behalf of the beneficiary. The majority believes that the phrase

"Beneficiary or an entitled Beneficiary" sh ould be strictly and

literally construed, and therefore, the phrase does not encompass

executors or representati ves (such as Armstrong in this case).

Under this interpretation, Armstrong's disclaimer is invalid, and

the Layman defendants should take the proceeds of the plan rather

than the Estes defendants.

I believe the majority's interpretation of the phrase

"Beneficiary or an entitled Beneficiary" is overly narrow. First

of all, while it is true that we must look to the plain meaning of

the terms within the plan for guidance, the cases cited by the

majority state or imply that clarity and a lack of am biguity are

important factors in proper interpretation of the terms in a plan.

Specifically, in the cases cited where benefit s are denied, the18

ter ms are more sharply restrictive and obvious in their meaning

than those in this case. For example, in Rodrigue v. Western and

So. Life Ins. Co., this Circuit held that Rodrigue 's claim under a

state equitable estoppel theory was invalid because he was asking

for payment for medical p rocedures explicitly excluded from the

plan. R odrigue v. Western and So. Life Ins. Co., 948 F.2d 969, 970

(5th Cir.1991) ( Rodrigue had kidney stones and the plan stated it

would not pay for treatment for ailments of the geni tourinary

system). This case is distinguishable from the instant case

because Rodrigue was asking for a treatment explicitly forbidden in

t he plan, there were no questions of grammar or definition of a

particular word involved in Rodrigue, and the other cases were

similarly specific in what was or wasn't allowed under their plans.

See also Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 57 (4th

Cir.1992), cert. denied 506 U.S. 1081, 113 S.Ct. 1051, 122 L.Ed.2d

359 (1993); L ockhart v. United Mine Workers of America 1974

Pension Trust, 5 F.3d 74, 78 (4th Cir.1993). This specificity is

not in place here.

A plain meaning interpretation of "beneficiary" will include

agents and representatives of beneficiary, because such

interpretation is commonplace in the law. Postmortem disclaimers

by executors are quite common and hardly unforeseeable deviations

from the terms of the plan (which, as stated, provides for

disclaimers for quite some time after the death of the participant

or beneficiary). For example, a beneficiary's legal representative

can disclaim an interest just as the beneficiary herself can, under19

the qualified disclaimer definition as set forth in Section 2518(b)

of the Internal Revenue C ode of 1986. 26 C.F.R. § 25.2518-

2(b)(1)(1996). An interpretation of the Plan which encompasses

such disclaimers is not a departure f rom standard plain language

interpretations of contract and labor law, and would not undermine

the integrity of the ERISA plan.

Also, the Laym an defendants cited no case law for the

proposition that a beneficiary's legal representative or executor

cannot disclaim an interest in the plan. In fact, there is ample

legal support for the contrary. For example, the R olin case cited

and distinguished by the majority stands for the proposition that

an executor stands in the shoes of a testator beneficiary for the

purposes of disclaimer. E state of Rolin v. Commissioner of

Internal Revenue, 68 T.C. 919, 1977 WL 3714 (1977), aff'd 588 F.2d

368 (2d Cir.1978) ; see also Estate of Allen v. Commissioner of

Internal Revenue, 56 T.C.M. (CCH) 1494 (1989). While the majority

distinguishes the Rolin case from the instant case due to the

difference in subject matter, I believe that the relevant point of

Rolin is the idea that executors have the authority to disclaim

property which was to be given to the testator beneficiary, and

that the time-period for disclaimers may relate back and act

retroactively. I believe that a plain meaning interpretation of

beneficiary incorporates the Rolin approach with regard to

executors. The fact that Texas, as well as many other states,

considers executors to ha ve certain powers of disclaimer further

bolsters the position that the drafters would assume that20

beneficiary would encompass executors, in terms of disclaimer and

all other powers listed for participants and beneficiaries in the

plan, and most specifically, regarding the right to wait up to nine

months after the death of Benny to disclaim. TEX. PROB. CODE ANN.

§ 145, et seq. (Vernon 1980 & Supp.1997); TEX. PROB. CODE ANN. §

37A (Vernon 1980 & Supp.1997).

Article XII, Section 4 of the Plan Document incorporates the

requirements for disclaimer from the Internal Revenue Code for the

purposes of describing the disclaimer requireme nts for the plan

with the following statement.

In the ev ent that a Beneficiary or an entitled Beneficiary

sign s and delivers to the committee a written disclaimer of

Plan benefits which satisfies the [Internal Revenue] C ode's

requirements to be tax qualified, and such be nefits but for

the disclaimer, would o therwise pass to such person as a

result of the death of a Participant or entitled Beneficiary,

the person executing such discl aimer of benefits shall be

deemed to have failed to survive the deceased Participant or

entitled Beneficiary from whom he otherwise would have taken.

I believe the majority's concern over the implications of the word

" which" in this section of the plan is misplaced and serves to

unnecessarily complicate the issue. A plain language reading of

this section, consistent with the plain legal usage of the word

"beneficiary" leads me to believe that the reference to the

Internal Revenue Code is there for the purpose of aiding in the

defin ition of the requirements of an appropriate disclaimer, a

definition which (in both plain usage and the Tax Code) includes

executors. The "which" is there to modify the previous phrase, and

serves to point toward proper definition of what beneficiary will

encompass. It does not create and "either/or" situation or an21

excessively limiting construction of the phrase. This term is

therefore far from fatal to the Estes defendants.

Moreover, the plan does not use the phrase "Beneficiary or an

entitled Beneficiary" exclusively in describing who can execute

disclaimer. The plan refers to "person executing such disclaimer."

I believe this further undermines the contention that the drafters

intended a very strict and literal definition of beneficiary, one

which would n ot encompass other persons such as executors or

representatives. If that were the intent of the drafters, they

would presumably would have consistently used the allegedly

limiting phrases throughout this section of the plan.

I n addition, I believe that the Estes defendants are the

appropriate recipients of the proceeds from the Plan for the simple

reason that I find it difficult to believe that Benny Brooks Estes

would want his hard-earned money to go to someone other than his

immediate family. I suspect that Benny would turn over in his

grave at the thought of such a distribution. Also, it has been

stated that one of the primary goals of ERISA is to provide support

for an employee and his family. Cartledge v. Miller, 457 F.Supp.

1146, 1156 (S.D.N.Y.1978); I n re Masters, 73 B.R. 796, 799

(Bankr.D. Or.1987). A distribution of plan proceeds which favors

the cousins of Benny Brooks Estes over his own children is not only

likely to be exactly the opposite of what Benny would have wanted,

but is also not in keeping with the goals of ERISA.

Further, the majority's belief that the Layman defendants

should receive the proceeds from the plan because that would be the22

presumed intent of the drafters of the plan rings hollow, given

that Phillips was the party that filed an interpleader action to

clarify who rightfully should receive the proceeds. I find it

unlikely that Phillips would have filed this action and hold up

distribution of the proceeds if it was so obvious that the proper

distribution under the plan would be to the Layman defendants.

Last, the majority's assertion that a distribution to the Estes

defendants is a strained construction of the plan seems a bit odd

given that it is the majority which seems to be straining to find

a way to take the proceeds away from the parties that Benny would

most likely want to have provided for. A decision in favor of the

Estes defendants, aside from being the more just result, makes more

sense given the terms of the plan and the actions of Phillips.

For the foregoing reasons, I respectfully d issent, and

accordingly would affirm the decision of the district court.