### The Honorab le 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.

Ka ren Wald appeals from the district court's grant of summar y 1 judg ment to Southwestern Bell Corporation Customcare Medical Plan (th e Plan), Southwestern Bell Company (Southwestern Bell) and The Prudentia l Insurance Company (Prudential) in this action brought under the Employee Ret irement Income Security Act, 29 U.S.C. § 1001 et seq. (ERISA). W e affirm.

I.

Wald was a participant in a self-insured employee benefit pla n sponsored by Southwestern Bell. Prudential was the plan

### -2-

administrator. Wald suffers from ovulatory mens trual 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 pla n provid es at least partial benefits in some instances for surgica l procedures that are medically necessary. Section 4.8 of the plan, however , provides in relevant part, that:

Not withstanding anything contained in this Plan to th e contrary, the following items shall not be covered by the Plan:

. . . . DD. C harges for actual or attempted impregnation o r fertil ization, 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 medication s 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 Cohe n discov ered excessive follicles on Wald's ovaries. They aspirated th e follicles as part of the GIFT procedure. The Lupron and Pergonal caused Wa ld to develop ovarian hyperstimulation syndrome, a serious medica l cond ition, and she remained in the hospital until February 20, 1992

. Because of the condition she developed, Wald would have needed th e procedure to aspirate the follicles regardless of whether she underwent th e complete GIFT procedure.

Wald f iled a claim for medical benefits to cover the services

. Prudential initially denied the claims related to both the GIFT procedure and Wa ld's subsequent hospitalization, reasoning that the plan did no t provide coverage for actual or attempted impregnation or fertilization or for any resulting complications. Upon reconsideration, however, Prudentia l determined that because the

### -3-

ovaria n hyperstimulation was a direct consequence of the Pergonal, a n eligible medication, coverage would be provided for the hospitalizatio n fromFebruary 6 through February 20. Prudential reaffirmed its decision that the hospital and physician charges incurred on February 5 wer e exclud ed, as those charges involved actual or attempted impregnation o r fertilization.

Wald appealed Prudential's decision to deny benefits for service s rendered on February 5, contending that the deni al of medical coverage for the GIFT procedure was discriminatory and would preclude her from receivin g the be st available medical treatment. Prudential denied the appeal , where upon Wald submitted a letter on July 2, 1992, contending that th e February 5 expenses were incurred as a result of complications fro m Per gonal and would have been incurred regardless of the GIFT procedure

. Prudential again denied benefits. On December 7, 1992, Dr. Cohen sent a lette r to Prudential in which he explained that the February 5 charge s would have been incur red to treat Wald's reaction to Pergonal, whether or not the GIFT procedure was performed. Prudentia l reviewed the letter, but did not change its decision.

Wald alle ged in Count I of her proffered amended complaint tha t Southw estern Bell, the Plan, and Prudential had wrongfully denied he r claim. In Count II, she alleged that Prudential had breached its fiduciar y duty in reviewing her claim. The district court granted Wald leave to fil e the amended complaint as to Count I, but denied her leave to file Count II , findin g that a claim for breach of fiduciary duty under ERISA may b e brought only where the duty is owed to the plan itself. The district cour t then granted summary judgment on Count I to Southwestern Bell, the Plan, and Prudential, findi ng that Prudential's interpretation was not contrary to the clear language of the plan.

Wald ar gues on appeal that the district court erred in denying he r leave to file Count II and in granting summary judgment against

### -4-

her on Count I. Wald challenges only the administrator's interpretation of the plan with respect to her claim; she does not challenge th e lawfulness of the plan's exclusion of fertility treatments in general.

II.

We re view a district court's decision to deny leave to amend a complaint for an abus e of discretion. Fuller v. Secretary of Defense , 30 F.3d 86, 88 (8th Cir.), cert. denied , 115 S. Ct. 583 (1994). Leave t o amend should be freely granted by the district court. Id. Leave may be denied, however, if amendment would be futile. Williams v. Little Roc k Mun. Water Works , 21 F.3d 218, 225 (8th Cir. 1994).

The dis trict found that adding Count II would be futile because a n 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 th e district court abused its discretion in denying the amendment, in tha t individu al plan beneficiaries have a right of action for breach o f 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 af firm the district court's decision on any ground supported by the record. Monterey Dev. Corp. v. Lawyers Title Ins. Corp. , 4 F.3 d 605, 608 (8th Cir. 1993). Putting aside the district court's view s concerning an individual plan beneficiary's right to bring an action for breach of fiduciary duty, the court correctly de termined that Wald did not state a cause of action.
Wald requested in her proposed amended Count II that the court enjoin Pruden tial to take steps to pay Wald and that the court declare tha t Prudential breached its fiduciary duty. She also requested attorney's fee s for prosecuting the claim. She brought

### -5-

her cl aim 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 o r fiduciary for appropriat e 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 thi s su bchapter or the terms of the plan, or (B) to obtain othe r appropriate equitable re lief (i) to redress such violations or (ii) to enforce any prov isions of this subchapter or the terms of the plan;

. . . . (g) (1) In any action under this subchapter . . . by a parti cipant, beneficiary, or fiduciary, the court in it s 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 Var ity Corp. v. Howe , 116 S. Ct. 1065 (1996), the Supreme Cour t recently clarified the circumstances under which an individual may sue for breach of fiduciary duty under ERISA. In that case, individuals sued thei r former employer, which had induced them to join the plan of a subsidiary by m isrepresenting to the employees that they would receive the sam e benefits f rom the subsidiary. The Court held that the employees wer e entitl ed to injunctive relief reinstating them to the former employer' s plan und er section 502(a)(3). In reaching its decision, the Cour t distinguished its pre vious 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 Russe ll , Wald does not have an individual cause of action under section 502(a)(2). See

### -6-

Russell , 473 U.S. at 142.

The Cou rt also noted that section 502(a)(3) authorizes onl y "appro priate" equitable relief. The Court stated that "where Congres s elsewhere provided ad equate relief for a beneficiary's injury, there will likely be no need for further equitable relief, in which case such relief normal lywould not be `appropriate.'" Id. at 1079. Because Wald i s provided adequate rel ief 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, an d she seeks no different relief in Count II of her complaint, equitabl e relie f 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 disc retion in int erpreting the plan to exclude the GIFT procedure. We review a district court's gran t 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 Prudentia l discre tionaryauthority to interpret the plan. Thus, we revie w Pruden tial's decision as plan administrator for an abuse of discretion

. Firestone Tire & Rubb er Co. v. Bruch , 489 U.S. 101, 115 (1989); Donaho v. FMC Cor p. , 74 F.3d 894, 898 (8th Cir. 1996). We reject Wald's argumen t that E RISA's requirement that a summary plan description (SPD) b e sufficientlycomprehensive 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 appendi x 2 

### containing a copy of the Summary Plan Description is granted.
-7- administrator's discretion. 2
Wald argues that because Prudential failed to conduct a full an d fair review of her claim, the deferential standard of review should not apply. Heightened review may apply if the beneficiary shows that a seriou s proced ural irregularity existed which caused a serious breach of th e administrator's duty to the plan beneficiary. Buttram v. Central States, S.E. & S.W. Areas Health & Welfare Fund , 76 F.3d896, 900 (8th Cir. 1996). The deferential standard will apply, however, un less the beneficiary comes forwar d with evidence establishing that the administrator acted under a confli ct of interest, dishonestly, with an improper motive, or withou t using judgment. Id. at 899-900.
Wald notes that Prudential did not obtain all of her hospital r ecords and did not provide h er with detailed reasons regarding the denial of her benefits. We interpret these assertions as alleging that Prudential faile d to use judgment in rendering its decision or that its decision wa s arbitrary. The record shows, however, that Prudential conducted a full an d fair review of the information before it and clearly explained to Wald tha t she was denied coverage because the plan specifically excluded attempted impregnation or fertilization. Cf. Cox v. Mid-A merica Dairymen, Inc. , 965 F.2d 569, 573-74 (8th Cir. 1992) (trustee failed to provide adequat e explana tion by simply stating beneficiary had not provided sufficien t evidence). Although Wald did not specifically r aise 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 th e fact that Prudential reversed its initial decisi on not to provide benefits for her hospitalization from February 6 through 20. We

### -8-

conclu de, therefore, that the abuse of discretion standard governs ou r review of Prudential's decision.
The abuse of discretion standard requires us to determine wheth er the plan administrator's decision was reasonable; that is, whether a reasonabl e person could have rea ched the same decision. Donaho , 74 F.3d at 899. In determining whether Prudential's interpretation was reasonable, we conside r five factors: (1) wh ether Prudential's interpretation is consistent with the plan's goals; (2) whether the interpretationrenders any of the plan's langu age meaningless or internally inconsistent; (3) whether th e interpretation conflicts with the substantive or procedural requirements of ERISA; (4) whether Prudential has interpreted the words at issu e consistently; and (5) whether the interpretationis contrary to the plan's clear lan guage. See Finley v. Special Agents Mut. Ben. Ass'n , 957 F.2 d 617, 621 (8th Cir. 1992).
We find that Prudential's interpretation is consistent with the goals of t he plan. Although one goal of the plan is to provide benefits fo r proced ures that are medically necessary, another goal is to exclud e benefit s for fertility procedures, as the terms of the plan expressl y provide. The record supports Prudential's posit ion 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 Feb ruary 5, the date set in advance before there was any indication that Wald's heal th was at risk, and it was paid for by Wald in advance. Dr. Cohen testified in his deposition that
on Fe bruary 6, 1992, he suspected that there was possible ovaria n hypers timulation syndrome and elaborated that, "I think I expected i t before that, even prior to the aspiration." He also testified, however, that the doctors treating Wald "were sensitive to the fact that [she] migh t develop hyperstimulation,"

### We also fin d 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 GIF T procedure, the patient is disc harged 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 f rom the Pergonal.
-9- and that they gave her albumen at the time of th e surgery in an attempt to "ward [the hyperstimulation] off."

Dr. Cohen's notes following surgery indicate that the surgery wen t "wi thout difficulty," although during the surgery it was noted that th e ovaries were "markedly enlarged." In addition, Dr. Thomas Pohlman wa s 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 Pergona l, and not the G IFT procedure, was the reason for the medical expenses, is no t 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 i s medically necessary, Prudential's interpretation of the exclusion for the GIFT procedure does not render any language in the plan meaningless o r internally inconsiste nt. The provision excluding fertilization expressly provides that the exc lusion applies "[n]otwithstanding anything contained in this Plan to the contrary."

ERISA does not create any substantive entitlement to employer

provided health benefits, Curtiss-Wright Corp. v. Schoonejongen , 115 S. Ct

. 1223, 1228 (1995), and Wald does not allege that the

### -10-

plan is unlawful in excluding benefits for fertility procedures. Th e procedural requirements of ERISA regarding the r eview process were met, as discussed earlier. The record contains no admissible evidence showing tha t Prudent ial 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 judgmen t opposition).

We conclude that because Prudential's interpretation satisfie s Finley 's five-factor test, its decision to exclude benefits for th e procedure was reasonable and thus must be upheld.
The judgment is affirmed.

A true copy.

Attest:

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