1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-10-1995

Amer Flint v Beaumont Glass

Precedential or Non-Precedential:

Docket 94-3307

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Recommended Citation

"Amer Flint v Beaumont Glass" (1995). 1995 Decisions. Paper 216.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 94-3307 

___________ 

AMERICAN FLINT GLASS WORKERS UNION, 

AFL-CIO; MICHAEL SINE; ANDY J. HATFIELD, 

 Appellants 

 v. 

BEAUMONT GLASS COMPANY; BEAUMONT 

COMPANY PENSION PLAN FOR HOURLY EMPLOYEES, 

 Appellees 

 

___________ 

Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civil Action No. 93-cv-01511) 

___________ 

Submitted Under Third Circuit LAR 34.1(a) 

January 10, 1995 

PRESENT: HUTCHINSON, NYGAARD and GARTH, Circuit Judges

(Filed August 10, 1995) 

____________ 

Marianne Oliver, Esquire 

Gilardi & Cooper, P.A. 

808 Grant Building 

Pittsburgh, PA 15219 

 and 

Edward J. Kabala, Esquire 

Kabala & Geeseman 

The Waterfront 

200 First Avenue 

Pittsburgh, PA 15222 

 and 

Alfred S. Pelaez, Esquire 
2 

Duquesne University School of Law 

900 Locust Street 

Pittsburgh, PA 15282 

 Attorneys for Appellants 
3 

Kathleen A. Gallagher, Esquire 

Pittsburgh Food & Beverage Company, Inc. 

1200 Frick Building 

437 Grant Street 

Pittsburgh, PA 15219 

 Attorney for Appellees 

____________ 

OPINION OF THE COURT 

____________ 

HUTCHINSON, Circuit Judge. 

 Appellants, American Flint Glass Workers Union, 

AFL-CIO, Michael Sine, and Andy J. Hatfield (collectively the 

"Union"), appeal an order of the United States District Court for 

the Western District of Pennsylvania denying their motion for 

summary judgment and, instead, sua sponte granting summary 

judgment to the appellees, the Beaumont Glass Company (the 

"Company") and the Beaumont Company Pension Plan for Hourly 

Employees (the "Plan"). This case arose after the Company 

unilaterally adopted a resolution to terminate the Plan, 

believing that termination would leave a surplus for 

distribution. The Union objected to the Company's unilateral 

decision to terminate and filed a charge with the National Labor 

Relations Board (the "NLRB"). Subsequently the Company and the 

Union agreed in writing to permit the termination process to go 

forward and the Union withdrew the charge. 

 After the Company and the Union had so agreed, the 

Company learned that there would be no surplus on termination, 

that the Plan was underfunded and that it would have to 
4 

contribute approximately $300,000 to the Plan before the Internal 

Revenue Service (the "IRS") would approve termination. 

The Company then decided not to terminate, and the Union filed 

this action alleging that the agreement to proceed with 

termination precluded the Company from canceling or withdrawing 

its decision to terminate because of unanticipated cost. Rather, 

the Union contends that the Company must provide the additional 

funds needed for IRS approval of the Plan's termination. It 

advances, as alternative theories of recovery, the fiduciary 

responsibilities of the Employee Retirement Income Security Act 

("ERISA") and the common law of contracts. 

 We reject the Union's theory that the Company had a 

fiduciary duty to provide the funds necessary to terminate the 

Plan. On the Union's contract theory, however, we conclude that 

genuine disputed issues of material fact exist. Accordingly, we 

will reverse the district court's sua sponte order granting 

summary judgment to the Company and remand this case for further 

proceedings consistent with this opinion. 

I. Statement of Facts

 On July 2, 1992, the Company's board of directors 

adopted a resolution to terminate the Plan.0 It also amended the 

 

0The resolution provided: 

NOW THEREFORE BE IT RESOLVED, that the 

attached Amendment to the Plan which, among 

other things, ceases any future Retirement 

Benefit accruals under the Plan effective 

August 31, 1992, be, and the same hereby is, 

adopted; 
5 

Plan to provide for an August 31, 1992 termination date.0 The 

 

FURTHER RESOLVED that the Plan shall be 

terminated as of August 31, 1992; 

FURTHER RESOLVED that all liabilities of the 

Plan to participants, beneficiaries and 

alternate payees be discharged through the 

purchase of annuity contracts, or the payment 

of lump sum distributions to electing 

participants, for all persons other than 

those who may receive lump sum cash-outs of 

$3,500 or less; . . . 

FURTHER RESOLVED, that [corporate officers] 

. . . file with the appropriate federal 

agencies such notifications and ruling 

requests as are customary or desirable under 

the circumstances. 

Appendix ("App.") at 22. 

0The following amendments were adopted by the board of directors: 

1. The Pension Fund and the Trustee, 

Article VI is amended by the addition of the 

following paragraph at the end thereof: 

Notwithstanding any other provision 

of this Plan, contributions under 

the Plan shall cease as of 

August 31, 1992. 

2. Eligibility Service and Credited Service, 

Article II, is amended by the addition of the 

following paragraph at the end thereof: 

Notwithstanding any other provision 

of this Plan, Eligibility Service 

and Credited Service shall cease to 

accrue, for any participant, no 

later than August 31, 1992. 

3. Retirement Benefits, Article VI, is 

amended by the addition of the following 

paragraph at the end thereof: 

Notwithstanding any other provision 

in the Plan, Retirement Benefits 
6 

Plan, as so amended, remains in effect. On July 2, 1992, the 

Company delivered notice of its intent to terminate the Plan on 

August 31, 1992 to each participant, beneficiary, alternate 

payee, and the Union pursuant to 29 U.S.C.A. § 1341(a)(2) (West 

1985). Based upon its own consultants' reports, the Company then 

believed that the Plan's assets exceeded the present value of its 

liabilities. 

 About a week after receiving notice of the Company's 

intent to terminate the Plan, the Union filed an unfair labor 

practice charge with the NLRB challenging the Company's 

unilateral decision to terminate the Plan. The NLRB issued a 

complaint and scheduled a hearing before an administrative law 

judge. Before the hearing, the Company and the Union met and 

entered into an agreement meant to resolve their dispute. In 

exchange for the Union's withdrawal of the NLRB charge, the 

Company agreed to pay the Plan's participants a lump-sum cash 

payment upon "receipt of approval of the Plan termination by the 

IRS."0 The parties refer to this agreement as the "Settlement 

Agreement," and so will we. 

 

shall cease to accrue, for any 

participant, no later than 

August 31, 1992. 

App. at 21. 

0In this respect, the Settlement Agreement states: 

 Upon receipt of the approval of the plan 

termination by the Internal Revenue Service, 

the Company will arrange for the distribution 

of the actuarial equivalent value of the 

accrued benefits in cash for each plan 

participant entitled to benefits under the 
7 

 The Company's consultants began preparing the documents 

necessary for regulatory permission to terminate the Plan. In 

doing so, they discovered that the Plan's assets were 

insufficient to satisfy its liabilities on a termination basis, 

even though it was adequately funded on an on-going basis. 

Instead of the expected surplus, the Company now faced a deficit 

of approximately $300,000 if it proceeded to terminate the Plan.0

If termination was abandoned, however, the Plan would remain 

adequately funded, so long as the Company continued its customary 

required contributions. Knowing these facts, the Company 

notified the Union that the assets of the Plan were insufficient 

to permit termination and that it no longer intended to terminate 

the Plan. The Company also refused to submit a termination plan 

 

terminating plan, unless such participant 

elects to take their benefits in the form of 

a monthly benefit. 

App. at 24. 

0Apparently, pension funding on a termination basis is subject to 

actuarial assumptions that differ from those used to calculate 

funding on an on-going basis. Accordingly, a pension plan that 

is adequately funded on an on-going basis can be substantially 

underfunded on a termination basis. The consultants explained 

the situation with regards to the present plan as follows: 

To summarize, the Plan has been caught in 

something of a squeeze between adverse 

changes in the annuity market place and 

adverse asset growth at the same time. The 

result is that the Plan's assets, which once 

comfortably covered all termination 

liabilities, no longer meet that need. The 

assets are, however, certainly large enough 

to meet the current annual payout 

requirements for retired employees. . . . 

App. at 201. 
8 

to the IRS, contending that the Settlement Agreement imposes on 

it no legal obligation to terminate. 

 The Union then filed this action. It alleged that the 

Company breached the Settlement Agreement and ERISA by failing to 

terminate the Plan and pay its participants the lump sum benefits 

that they would be entitled to receive upon termination. When 

the facts recited above went undisputed, the Union moved for 

summary judgment, contending that the Settlement Agreement 

unambiguously required the Company to terminate the Plan and pay 

the lump sums due on termination. 

 On May 13, 1994, the district court held that the 

Company and the Plan were not obligated to terminate by contract, 

fiduciary duty, or any other legal principle. It reasoned that 

ERISA precluded termination of an underfunded plan and therefore 

"submission of the Plan termination to the IRS for approval would 

have been an exercise in futility." American Flint Glass Workers 

Union, AFL-CIO v. Beaumont Glass Co., No. 93-1511, slip op. at 6 

(W.D. Pa. May 13, 1994). It also concluded that the Settlement 

Agreement did not obligate the Company to make the payment 

necessary to fund termination. The district court not only 

denied the Union's motion for summary judgment but, on its own 

motion, granted summary judgment to the Company. The Union filed 

this timely appeal. 

II. Jurisdiction & Standard of Review

 The district court had subject matter jurisdiction over 

this case under 28 U.S.C.A. § 1331 (West 1995). We have 
9 

appellate jurisdiction over the district court's final decision 

under 28 U.S.C.A. § 1291 (West 1993). 

 In this case, the Company did not move for summary 

judgment. The district court, on its own motion, granted summary 

judgment, stating: 

Although Fed. R. Civ. P. 56 does not 

explicitly authorize this Court to grant 

summary judgment to a non-moving party, the 

Court concludes that 'where one party has 

invoked the power of the court to render a 

summary judgment against [an] adversary, it 

is reasonable that this invocation gives the 

court power to render summary judgment for 

[the] adversary if it is clear that the case 

warrants that result.' 6 Moore's Federal 

Practice ¶ 56.12 (1994). 

American Flint, No. 93-1511, slip op. at 9. Neither party 

challenges the district court's decision to act sua sponte.

0 We 

will therefore review the merits of the district court's order 

granting summary judgment to the Company using the customary 

standard of plenary review over district court orders granting 

summary judgment. Bixler v. Central Pa. Teamsters Health-Welfare 

Fund, 12 F.3d 1292, 1297 (3d Cir. 1993); Wheeler v. Towanda Area 

School Dist., 950 F.2d 128, 129 (3d Cir. 1991). All reasonable 

 

0Nevertheless, it is appropriate to remind the district court: 

"[A] district court may not grant summary judgment sua sponte 

unless the court gives notice and an opportunity to oppose 

summary judgment." Otis Elevator Co. v. George Washington Hotel 

Corp., 27 F.3d 903, 910 (3d Cir. 1994) (citing, among other 

cases, Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069-70 

(3d Cir. 1990), Davis Elliott International, Inc. v. Pan American 

Container Corp., 705 F.2d 705, 707-08 (3d Cir. 1983). While 

these rights can be waived, orders granting summary judgment sua

sponte endanger important rights and, unless waived as here, are 

likely to result in judicial inefficiency and deprivation to the 

rights of one of the parties. 
10 

inferences and any ambiguities should be drawn in favor of the 

party against whom judgment is sought. Bixler, 12 F.3d at 

1297-98. Moreover, summary judgment should be granted only when 

there is no genuine issue of material fact and the moving party 

is entitled to judgment as a matter of law. Id. at 1297. 

III. Discussion

A. ERISA

 The Union claims that the Company breached its 

fiduciary duties under ERISA by failing to terminate the Plan. 

Conceding that the Company had no initial duty to terminate, the 

Union claims that once the Company amended the Plan to include a 

termination date it had to administer the Plan in accordance with 

that amendment. Thus, the Union concludes that the Company 

breached its fiduciary duty when it failed to provide the funding 

necessary to terminate the Plan and thereafter distribute the 

Plan's assets to the employees. On this point we, like the 

district court, disagree with the Union. 

 The Plan is a single-employer defined benefit pension 

plan subject to ERISA, and the Company serves as a fiduciary 

under ERISA with regard to certain specified plan related 

decisions. Although "ERISA creates a fiduciary duty on the part 

of an employer administering a plan," the employer does not 

always act in a fiduciary capacity. Delgrosso v. Spang and Co., 

769 F.2d 928, 934 (3d Cir. 1985), cert. denied, 476 U.S. 1140 

(1986). Under ERISA, "when employers themselves serve as plan 

administrators, they assume fiduciary status only when and to the 
11 

extent that they function in their capacity as plan 

administrators, not when they conduct business that is not 

regulated by ERISA." Hozier v. Midwest Fasteners, Inc., 908 F.2d 

1155, 1158 (3d Cir. 1990) (quotations omitted). An employer's 

decision to amend a plan is not the subject of ERISA's fiduciary 

duties. Id. at 1161 ("Virtually every circuit has rejected the 

proposition that ERISA's fiduciary duties attach to an employer's 

decision whether or not to amend an employee benefit plan.") 

(collecting cases); see also McGath v. Auto-Body North Shore, 

Inc., 7 F.3d 665, 670 (7th Cir. 1993) (quoting Hozier). 

 A decision to terminate a plan is "unconstrained by the 

fiduciary duties that ERISA imposes on plan administration." 

Hozier, 908 F.2d at 1162; see also Fischer v. Philadelphia Elec. 

Co., 994 F.2d 130, 133 (3d Cir.), cert. denied, 114 S. Ct. 622 

(1993). Payonk v. HMW Industries, Inc., 883 F.2d 221, 229 (3d 

Cir. 1989). We will, however, assume, once a termination 

decision is reached, that ERISA's fiduciary duties control the 

termination procedures. See District 65, UAW v. Harper & Row 

Publishers, Inc., 670 F. Supp. 550, 556-57 (S.D.N.Y. 1987) 

(holding that post-termination decisions are subject to ERISA's 

fiduciary duties when they involve discretionary decisions). 

 Nevertheless, we believe that the Union's fiduciary 

claim still fails in this case. The duty here in question is no 

more than the duty to administer an ERISA-covered plan in 

accordance with the plan's terms. See 29 U.S.C.A. § 1104 (West 

1985 and Supp. 1995); Spang, 769 F.2d at 935-36. ERISA 

section 1104 states in relevant part: 
12 

[A] fiduciary shall discharge his duties with 

respect to a plan solely in the interest of 

the participants and beneficiaries and-- 

* * * 

(D) in accordance with the documents and 

instruments governing the plan insofar as 

such documents and instruments are consistent 

with the provisions of this subchapter and 

subchapter III of this chapter. 

29 U.S.C.A. § 1104(a)(1)(D) (West Supp. 1995) (emphasis added). 

The Union's argument ignores the highlighted limiting clause in 

this quote from the statute, which limits the Company's fiduciary 

duty in effecting termination to compliance with ERISA's 

provisions concerning termination. As the United States Court of 

Appeals for the Fourth Circuit recently held, "strict compliance 

with the statute is the sole means by which a pension plan 

subject to the provisions of ERISA may be terminated." Phillips 

v. Bebber, 914 F.2d 31, 34 (4th Cir. 1990); see also 29 U.S.C.A. 

§ 1341(a)(1) (West Supp. 1995) ("Exclusive means of plan 

termination"). 

 With respect to termination, ERISA provides, ". . . a 

single-employer plan may be terminated only in a standard 

termination under subsection (b) of this section or a distress 

termination under subsection (c) of this section." 29 U.S.C.A. 

§ 1341(a)(1). The termination at issue in this case can proceed 

only as a standard termination. In a standard termination, ERISA 

requires, in relevant part, that: 

the plan administrator shall send a notice to 

the [Pension Guaranty Corporation] setting 

forth-- 

(i) certification by an enrolled actuary-- 
13 

(I) of the projected amount of the assets of 

the plan (as of the proposed date of the 

final distribution of assets), 

(II) of the actuarial present value (as of 

such date) of the benefit liabilities 

(determined as of the proposed termination 

date) under the plan, and 

(III) that the plan is projected to be 

sufficient (as of such proposed date of final 

distribution) for such benefit liabilities. 

29 U.S.C.A. § 1341(b)(2) (West Supp. 1995) ("Termination 

procedure"). Here, the actuaries were unable to provide the 

certification required for termination because of insufficient 

assets. Thus, the Company could not terminate the Plan as the 

amendment provided in accord with ERISA unless it had some legal 

obligation to provide all the funds necessary to meet ERISA's 

full funding requirement. We perceive no such obligation in the 

statute itself. Indeed the Union's reasoning on this point seems 

circular.0

 The Pension Guaranty Corporation's regulations on 

terminations provide: 

[F]ailure to distribute assets . . . within 

the 180-day distribution period . . . shall 

 

0The Union's reliance on Kinek v. Paramount Communications, 22 

F.3d 503 (2d Cir. 1994), and Pension Benefit Guaranty Corp. v. 

Artra, Group, Inc., 972 F.2d 771, 772 (7th Cir. 1992), is 

misplaced. In Kinek, the court addressed the contractual 

responsibilities of an employer that terminated a plan. The 

contract in question specifically stated that "'the Employer will 

fully fund'" the plan upon termination. Kinek, 22 F.3d at 506. 

Although this case may prove relevant on remand to the Union's 

contract claim, it has no effect on its claim for breach of 

fiduciary duty. In Artra, the court held an employer liable for 

terminating an underfunded plan. Artra, 972 F.2d at 771. 

Furthermore, Artra addressed the company's statutory liability 

under ERISA's termination provision, 29 U.S.C.A. § 1362, and not 

its fiduciary duties. 
14 

nullify the termination. All actions taken 

to effect the plan's termination shall be 

null and void, and the plan shall be an 

ongoing plan. In this event, the plan 

administrator shall notify the affected 

parties in writing . . . that the plan is not 

going to terminate or, if applicable, that 

the termination was invalid but a new notice 

of intent to terminate is being issued. 

29 C.F.R. § 2617.28 (emphasis added). As stated above, the 

Company properly notified the affected parties when it determined 

that the Plan's asserts were insufficient to permit the 

termination process to go forward. Accordingly, we conclude that 

the amendment is null and void and the Company has no continuing 

fiduciary duty to act in accordance with it. 

 The district court's grant of summary judgment in favor 

of the Company on the Union's breach of fiduciary duty claim will 

be affirmed. 

B. Contract

 We must still consider, however, what the Settlement 

Agreement obligates the Company to do. The Union argues that the 

Company promised "to terminate the Plan and, by clear implication 

and by law, to provide whatever funding termination required." 

Brief of Appellant at 8. The Company responds that ERISA 

precludes it from terminating the Plan at its current funding 

level and nothing in the Settlement Agreement obligates it to 

furnish the additional funding needed to terminate. 

 The Settlement Agreement, as an agreement between an 

employer and a union, is a labor agreement, but its 
15 

interpretation is nevertheless governed by general principles of 

contract law. See 29 U.S.C.A. § 185 (West 1995); Jersey Cent. 

Power & Light Co. v. International Brotherhood of Electrical 

Workers, 508 F.2d 687, 703 n.45 (3d Cir. 1975) (labor agreements 

"are to be interpreted according to principles of general 

contract law inasmuch as Congress has not adopted a different 

standard by which the . . . agreement is to be interpreted."); 

see also Textile Workers Union v. Lincoln Mills of Alabama, 353 

U.S. 448 (1957). 

 The parties frame their dispute around the Settlement 

Agreement's provision for distributions to Plan participants upon 

the IRS's approval of termination. The Company contends that the 

IRS's approval is a condition precedent to termination that it is 

unable to satisfy. The Union argues that the lack of the IRS's 

approval is immaterial because it was the Company's failure to 

submit a termination Plan to the IRS that prevented the 

occurrence of the condition. See Davidson & Jones Dev. Co. v. 

Elmore Dev. Co., 921 F.2d 1343, 1351 (6th Cir. 1991); Vanadium 

Corp. v. Fidelity & Deposit Co., 159 F.2d 105, 108 (2d Cir. 

1947); Cauff, Lippman & Co. v. Apogee Finance Group, Inc., 807 

F. Supp. 1007, 1024 (S.D.N.Y. 1992). 

 Both parties seem to miss the point when they cast 

their arguments primarily in terms of conditions precedent.0 The 

issue, as we see it, is whether the Settlement Agreement imposes 

 

0In doing so, they run the risk of confusing the condition 

precedent that the IRS imposes on termination with the provisions 

of the contract that the Company believes make pre-existing full 

funding a condition precedent to its obligation to terminate. 
16 

a duty on the Company to provide the funding needed to obtain IRS 

approval of the proposed termination. In this respect, the 

district court correctly defined the issue, but incorrectly 

resolved it. It held: "[The Union's] breach of contract theory 

founders because [it] fail[s] to establish that [the Company and 

the Plan] are, or ever were, under a contractual duty to [the 

Union] to put sufficient additional assets into the fund to 

render the fund susceptible of lawful voluntary termination." 

American Flint, No. 93-1511, slip op. at 6. We hold that the 

district court erred in resolving this issue as a matter of law. 

 "'[I]n order for us to affirm the district court with 

respect to summary judgment, we must determine that the contract 

is so clear that it can be read only one way.'" Tigg Corp. v. 

Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987) (quoting 

Landtect Corp. v. State Mut. Life Assur. Co., 605 F.2d 75, 79 (3d 

Cir. 1979)). Thus, if the union "'presents us with a reasonable 

reading of the contract which varies from that adopted by the 

district court, then a question of fact as to the meaning of the 

contract exists which can only be resolved at trial.'" Id.

 In determining the meaning of the contract, the 

"initial resort should be to the 'four corners' of the agreement 

itself." Washington Hospital v. White, 889 F.2d 1294, 1300 (3d 

Cir. 1989), cert. denied, 498 U.S. 850 (1990). "To be 

unambiguous, an agreement must be reasonably capable of only one 

construction." Id. at 1301 (citations omitted). Ambiguity is a 

pure question of law for the court. World-Wide Rights Ltd. 

Partnership v. Combe Inc., 955 F.2d 242, 245 (4th Cir. 1992); see
17 

also International Brotherhood of Boilermakers, etc. v. Local 

Lodge D504, 866 F.2d 641 (3d Cir.), cert. denied, 493 U.S. 812 

(1989); Tigg, 822 F.2d at 362. 

 In deciding whether a contract is ambiguous, a court 

does not just ask whether the language is clear; instead it 

"hear[s] the proffer of the parties and determine[s] if there are 

objective indicia that, from the linguistic reference point of 

the parties, the terms of the contract are susceptible of 

different meanings." Teamster Industrial Employees Welfare Fund 

v. Rolls-Royce Motor Cars, Inc., 989 F.2d 132, 135 (3d Cir. 1993) 

(quoting Sheet Metal Workers, Local 19 v. 2300 Group, Inc., 949 

F.2d 1274, 1284 (3d Cir. 1991)) (internal brackets and quotation 

marks omitted). As we have stated: 

An ambiguous contract is one capable of being 

understood in more senses than one; an 

agreement obscure in meaning through 

indefiniteness of expression, or having a 

double meaning. . . . Before it can be said 

that no ambiguity exists, it must be 

concluded that the questioned words or 

language are capable of [only] one 

interpretation. 

Landtect Corp. v. State Mut. Life Assurance, 605 F.2d 75, 80 (3d 

Cir. 1979) (internal quotation marks omitted) (quoting Gerhart v. 

Henry Disston & Sons, 290 F.2d 778, 784 (3d Cir. 1961)). 

 If a contract can reasonably be interpreted in two 

different ways, neither contracting party is entitled to summary 

judgment. Here the parties offer two reasonable interpretations: 

(1) the contract requires the Company to terminate the Plan only 

if its current funds enable it to do so, or (2) the contract 
18 

requires the Company to take all necessary steps (including 

funding) to effectuate the proposed termination. In this 

respect, the Settlement Agreement is ambiguous and extrinsic 

evidence is necessary to ascertain the intent of the parties. See

World-Wide Rights, 955 F.2d at 242; Rolls-Royce, 989 F.2d at 135; 

Tigg, 822 F.2d at 363; Thompson-Starrett Int'l, Inc. v. Tropic 

Plumbing, Inc., 457 F.2d 1349, 1352 (3d Cir. 1972). 

 Accordingly, we hold that a material issue of fact 

remains in dispute concerning the parties' intent to impose on 

the Company a duty to provide the funding needed to secure IRS 

approval of termination.0 This question cannot be resolved as a 

matter of law on the record now before us, and therefore further 

proceedings will be needed in the district court. 

IV. Conclusion

 For the above reasons, we will reverse the district 

court's grant of summary judgment in favor of the Company and 

remand the case for further proceedings consistent with this 

opinion. 

 

0This issue of fact concerning the intent of the contracting 

parties should be distinguished from the legal issue of 

construing the meaning of a contract's terms from their text. See

White, 889 F.2d at 1302. 
19