White v. Coca-Cola Co.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 10, 2008

No. 07-13938

THOMAS K. KAHN

________________________

CLERK

D. C. Docket No. 06-01118-CV-ODE-1

FRANKIE WHITE,

LEON WARNER,

Individually and On Behalf of

All Others Similarly Situated,

Plaintiffs-Appellants,

versus

THE COCA-COLA COMPANY,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(September 10, 2008)

Before BIRCH, WILSON and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

In this appeal we consider whether a plan administrator’s reduction of

benefits under a long-term-disability plan based on a participant’s receipt of Social

Security disability benefits is reasonable and entitled to deference. Frankie White

and Leon Warner appeal the summary judgment against their complaints for

benefits under the Coca-Cola Company Long Term Disability Income Plan, which

is governed by the Employee Retirement Income Security Act of 1974. 29 U.S.C.

§§ 1001–1461. White and Warner contest the plan administrator’s interpretation

of both a provision that permits an offset for the receipt of other disability benefits

and a provision that allows the plan to recoup overpayments of benefits. Because

the interpretation of the offset provision by Coca-Cola is reasonable and entitled to

deference and the interpretation of the recoupment provision by Coca-Cola is

correct, we affirm the summary judgment in favor of Coca-Cola.

I. BACKGROUND

We divide our discussion of the background of this appeal in three parts.

First, we discuss the terms of the plan. Second, we discuss White’s and Warner’s

claims for benefits. Third, we discuss the procedural history.

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A. The Plan

As the sponsor and administrator of the plan, Coca-Cola delegated its

powers to The Coca-Cola Company Benefits Committee. The plan grants the

committee exclusive responsibility and discretionary authority “to construe the

Plan and decide all questions arising under the Plan,” including the authority “to

determine the eligibility of Participants to receive benefits and the amount of

benefits to which any Participant may be entitled under the Plan.” Although the

plan permits the committee to delegate some of its powers to an administrative

services provider, the committee retains the final authority to determine the

eligibility of participants, the entitlement of participants to benefits, and all issues

arising under the plan.

For participants who were determined to be disabled under the plan before

January 1, 2003, benefits are paid from a trust funded by periodic and irrevocable

payments by Coca-Cola. Although Coca-Cola states that the claims of participants

have never been paid from the general assets of Coca-Cola, two filings with the

Internal Revenue Service, Form 5500 Annual Return/Report of Employee Benefit

Plan for the years 2003 and 2004, state that claims were paid out of the trust and

the general assets of Coca-Cola for those years. Coca-Cola filed an affidavit

stating that these filings have scrivener’s errors.

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Under the plan, the default monthly benefit is ordinarily 60 percent of the

participant’s average compensation. The plan contains in section 4.2(a) an offset

provision, which reduces the disability benefits for a participant who receives

disability benefits from other sources:

The monthly Disability Benefit payable from this Plan to the

Participant who receives disability benefits from any source described

in subsection (b) [including Social Security benefits] will be reduced

as necessary so that the total of his monthly Disability Benefit from

this Plan equals no more than the following amount:

(1) 70 percent of his Average Compensation . . . minus

(2) the amount of his monthly disability benefits payable

from all other sources;

provided that the difference will not exceed 60 percent of his

Average Compensation . . . ; and provided further that the

offset for other disability benefits will not serve to reduce the

Disability Benefit under this Plan to an amount less than 60

percent of the Participant’s Average Compensation . . . .

The plan also states that benefits under the plan will cease if benefits from other

sources “equal[] or exceed[] 70 percent of [the participant’s] Average

Compensation.”

The summary plan description provides an example of the operation of the

offset provision:

LTD payment example

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Suppose your basic monthly pay for disability purposes

is $3,000 and you do not receive benefits from other

sources.

Here’s how your LTD payment is figured:

$3,000 Basic monthly pay before disability

x 60% Maximum LTD pay replacement percentage

$1,800 Maximum monthly benefit from the LTD

plan

If you begin receiving $750 in monthly

Social Security disability payments, your

LTD benefits will be reduced as follows:

$3,000 Basic monthly pay before disability

x 70% Maximum pay replacement percentage from

all sources

$2,100 Total amount of your pay to be replaced

from all sources

-[$]750 Monthly Social Security disability payment

$1,350 Actual monthly benefit from the LTD plan

As the above example shows, the LTD Plan works with

your Social Security disability payments to bring your

monthly income to 70% of your basic monthly pay.

The summary plan description also restates that benefits cease if benefits from

other sources equal or exceed 70 percent of the participant’s average

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compensation.

The plan also contains a provision for the recoupment of any overpayment

of benefits. Section 4.2(d) of the plan states, “If the Participant receives a

retroactive payment of a disability benefit described in Subsection (b), the benefit

will be considered to have been paid throughout the period for which it was

payable.” Section 4.2(e), which is the recoupment provision, states, “Any

overpayment of Disability Benefits arising under Subsection . . . (d) will be

deducted from the Participant’s future payments [from the plan].” The summary

plan description restates these provisions.

B. White’s and Warner’s Claims for Benefits

White became disabled in 1999 and received long-term disability benefits

under the plan from August 1999 to July 2004. White received $1,720.15 a

month, which was 60 percent of his average compensation. On July 31, 2004, the

administrative services provider, Liberty Life Assurance Company of Boston,

terminated White’s disability benefits. White appealed, and the committee

reinstated White’s benefits in November 2005 retroactive to July 30, 2004.

In July 2005, the Social Security Administration awarded White disability

benefits in the amount of $1,442.10 a month retroactive to November 2001. The

Administration awarded White a lump-sum payment of $38,124.90 in retroactive

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benefits. White informed Coca-Cola of his award of Social Security benefits in

August 2005.

When Liberty Life resumed making payments to White, it applied both the

offset provision and the recoupment provision. Liberty Life reduced White’s

payments to 70 percent of his average compensation less his monthly Social

Security benefits for a total monthly payment of $564.85. Liberty Life calculated

that White had been overpaid $32,824.90 and reduced his monthly benefits under

the plan by $466.84 a month for approximately 60 months to recover the

overpayments. Liberty Life did not inform White that he could file an

administrative appeal to challenge the reduction of his benefits.

White appealed the application of the offset and recoupment provisions to

the committee in February 2006. White argued that the last proviso clause of the

offset provision creates a “60 percent floor” for his benefits and prohibits an offset

to account for his receipt of Social Security benefits. White also argued that, even

if the plan permits the offset of his future benefits to account for his Social

Security benefits, the plan and ERISA prohibit the recovery of an overpayment of

his past benefits. White attached a copy of a judicial opinion, Oliver v. Coca-Cola

Co., 397 F. Supp. 2d 1327 (N.D. Ala. 2005), in support of his appeal.

The committee retained outside counsel, Patrick DiCarlo, to evaluate

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White’s claims and prepare a legal opinion regarding the offset and recoupment

provisions. DiCarlo concluded that, because the proviso clause was inconsistent

with other terms of the plan, the offset provision was ambiguous. DiCarlo

concluded that the committee could interpret the plan to permit an offset below 60

percent of a participant’s average compensation to account for benefits from other

sources and recover an overpayment based on a retroactive award of Social

Security benefits. DiCarlo also concluded that Coca-Cola was not bound by the

decision of the district court in Oliver. The committee adopted DiCarlo’s

interpretation of the plan and unanimously voted to deny White’s claims for

additional benefits. DiCarlo sent a letter to White that explained the final decision

of the committee.

Warner became disabled and, in March 2000, was approved for disability

benefits of $1,931.62 a month, which was 60 percent of his average compensation.

On October 15, 2002, the plan administrator, ING, informed Warner that, because

he received Social Security disability benefits of $1,474 a month beginning in

October 2000, ING would apply the offset and recoupment provisions to his

benefits. ING determined that Warner was overpaid $26,471.70 in benefits and

reduced his payments by $779.56 a month for approximately 23 months. ING

never informed Warner of his ability to file an administrative appeal, and Warner

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did not appeal the reduction of his benefits.

C. Procedural History

White and Warner filed a complaint against Coca-Cola regarding the

reduction of their benefits. The district court granted summary judgment in favor

of Coca-Cola and denied the motion for partial summary judgment filed by White

and Warner. The district court concluded that the interpretation of the offset

provision by Coca-Cola is “de novo wrong,” but reasonable and entitled to

deference. The district court also concluded that the interpretation of the

recoupment provision by Coca-Cola is “de novo right.” The district court denied

as unnecessary the motion to compel discovery and denied as moot their motion

for class certification.

II. STANDARDS OF REVIEW

We review a summary judgment de novo. Cagle v. Bruner, 112 F.3d 1510,

1514 (11th Cir. 1997). We review a denial of discovery for abuse of discretion.

Jackson v. Cintas Corp., 425 F.3d 1313, 1316 (11th Cir. 2005). We review a

denial of class certification for abuse of discretion. Hines v. Widnall, 334 F.3d

1253, 1255 (11th Cir. 2003).

III. DISCUSSION

The district court used the framework that we established in Williams v.

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BellSouth Telecommunications, Inc., 373 F.3d 1132, 1137–38 (11th Cir. 2004),

which provides a six-step process “for use in judicially reviewing virtually all

ERISA-plan benefit denials”:

(1) Apply the de novo standard to determine whether the claim

administrator’s benefits-denial decision is “wrong” ( i.e., the court

disagrees with the administrator’s decision); if it is not, then end the

inquiry and affirm the decision.

(2) If the administrator’s decision in fact is “de novo wrong,”

then determine whether he was vested with discretion in reviewing

claims; if not, end judicial inquiry and reverse the decision.

(3) If the administrator’s decision is “de novo wrong” and he

was vested with discretion in reviewing claims, then determine

whether “reasonable” grounds supported it (hence, review his

decision under the more deferential arbitrary and capricious

standard).

(4) If no reasonable grounds exist, then end the inquiry and

reverse the administrator’s decision; if reasonable grounds do exist,

then determine if he operated under a conflict of interest.

(5) If there is no conflict, then end the inquiry and affirm the

decision.

(6) If there is a conflict of interest, then apply heightened

arbitrary and capricious review to the decision to affirm or deny it.

Id. (footnotes omitted).

Recently, in Metropolitan Life Insurance Co. v. Glenn, the Supreme Court

cast doubt on the sixth step of this procedure. 128 S. Ct. 2343, 2350–51 (2008).

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After the Court determined that the administrator of an ERISA plan operated

under a conflict, it considered “‘how’ [a] conflict . . . should ‘be taken into account

on judicial review of a discretionary benefit determination.’” Id. at 2350 (quoting

MetLife v. Glenn, 128 S. Ct. 1117 (2008) (mem.)). The Court concluded “that a

conflict should ‘be weighed as a factor in determining whether there is an abuse of

discretion.’” Id. (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,

115, 109 S. Ct. 948, 957 (1989) (internal quotation marks omitted)). The Court

explained that the consideration of a conflict as a factor did not require “a change

in the standard of review” and criticized “special burden-of-proof rules, or other

special procedural or evidentiary rules, focused narrowly upon the evaluator/payor

conflict” that circuit courts had developed. Id. at 2351. The Court stated that

“[b]enefits decisions” are too numerous in nature “to come up with a

one-size-fits-all procedural system that is likely to promote fair and accurate

review. Indeed, special procedural rules would create further complexity, adding

time and expense to a process that may already be too costly for many of those

who seek redress.” Id. Although Glenn affects the sixth step of Williams, Glenn

does not alter our analysis unless Coca-Cola operated under a conflict of interest.

We divide our discussion of the merits of this controversy in two parts.

First, we address whether Coca-Cola reasonably interpreted the offset provision.

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Second, we discuss whether Coca-Cola correctly interpreted the recoupment

provision.

White and Warner also raise issues about litigation procedures that we need

not address. Because the district court was correct to grant summary judgment in

favor of Coca-Cola, the district court did not abuse its discretion in denying the

motions of White and Warner for discovery and class certification. The resolution

of the merits of this controversy obviates any issue about these procedures.

A. Coca-Cola Reasonably Interpreted the Offset Provision.

Our discussion of whether Coca-Cola reasonably interpreted the plan is

divided in four parts. First, we address why the proviso clause of section 4.2(a) is

ambiguous and the interpretation by Coca-Cola of that provision is wrong.

Second, we address the discretion of Coca-Cola to interpret the plan. Third, we

explain why the reconciliation by Coca-Cola of the conflicting provisions in the

plan is reasonable. Fourth, we address whether Coca-Cola operated under a

conflict of interest when it interpreted the plan.

1. The Interpretation by Coca-Cola of the Ambiguous Offset Provision is Wrong.

White and Warner argue that the interpretation of the offset provision by

Coca-Cola is de novo wrong because the “only plausible interpretation of Section

4.2 [of the plan] would be to place a 60% cap and a 60% floor” on the benefits that

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a participant receives. Coca-Cola responds that its interpretation is reasonable

because the proviso clause of the offset provision conflicts with other provisions

in the plan. Coca-Cola concedes that the district court correctly concluded that the

proviso clause creates an ambiguity that the district court was permitted to

construe against Coca-Cola as the drafter of the document.

We agree with Coca-Cola that the proviso clause conflicts with other

provisions of the plan. Section 4.1(b) of the plan places a cap of 60 percent of a

participant’s average compensation on the benefits a participant may receive under

the plan: “no Participant can receive a monthly benefit from this Plan in excess of

60 percent of his Average Compensation.” The proviso clause then sets a 60

percent floor for benefits under the plan: “[T]he offset for other disability benefits

will not serve to reduce the Disability Benefit under this Plan to an amount less

than 60 percent of the Participant’s Average Compensation.” But it makes no

sense to have both a 60 percent cap and a 60 percent floor when section 4.2(a)

otherwise states that disability benefits cannot exceed 70 percent of the

participant’s average compensation. The 60 percent floor in the proviso clause

also conflicts with section 3.4, which refers to the reduction of a participant’s

benefits below 60 percent of his average compensation if he receives disability

benefits from other sources. Cf. Stewart v. KHD Deutz of Am., Corp., 980 F.2d

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698, 703 (11th Cir. 1993) (identifying incompatible provisions of a benefits plan).

The problem for Coca-Cola is that this ambiguity favors White and Warner.

Ambiguities in ERISA plans are construed against the drafter of the document,

and a claimant’s reasonable interpretation is viewed as correct. Lee v. Blue

Cross/Blue Shield of Ala., 10 F.3d 1547, 1551 (11th Cir. 1994). Because the

claimants’ interpretation of a 60 percent floor is a reasonable reading of the

proviso clause, the interpretation by Coca-Cola is de novo wrong. We agree with

that ruling by the district court.

2. The Plan Vests the Committee with Discretion.

White and Warner concede that the plan grants the Benefits Committee

complete and final discretionary authority to construe the plan and decide all

questions arising under the plan, but they argue that we should not recognize that

discretion for several reasons. Their arguments fail. We address each in turn.

White and Warner argue that we should not recognize the discretion of the

committee to interpret the plan because the third-party administrator did not give

them notice of the right to appeal the application of the offset and recoupment

provisions to their benefits. We disagree. There is evidence in the record that

White and Warner had notice of their right to appeal the decisions of the third-

party administrators: the procedure for administrative appeals is outlined in every

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summary plan description issued by Coca-Cola during the relevant time period.

White also filed an administrative appeal of the decision.

White and Warner argue that the failure of the third-party administrator to

notify them of their right to appeal violates federal regulations that govern notices

sent to plan participants, see 29 C.F.R. § 2560.503-1(f)–(h), and they cite Torres v.

Pittston Co., 346 F.3d 1324, 1333 n.11 (11th Cir. 2003), for the proposition that

this failure permits courts to review the decisions of the administrator without

deference. Torres creates no such permission. In Torres, we addressed whether a

“deemed denial” of benefits under a plan receives less deference on judicial

review than does a denial that does not occur by operation of ERISA regulations.

We explained that the Labor Department “has taken the position that” failure to

comply with minimum procedural safeguards permits courts to review the

decisions of an administrator without deference. Id at n.11. We declined to adopt

that broad position. We instead recognized that some courts review deemed

denials de novo because they are not the result of plan administrators’ discretion,

and other courts “have held that the fact that the denial occurs by operation of

ERISA regulations does not alter the otherwise-applicable standard of review.”

Id. at 1332-33. As the district court observed correctly, this division of authorities

was limited to administrative failures to exercise discretion. This appeal does not

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involve an administrative failure to exercise discretion, and Torres does not, in any

event, require us to alter our standard of review.

White argues that the committee prejudged his appeal because it argued

against his position in Oliver and Byars v. Coca-Cola Co., No.

1:01-CV-3124-TWT, 2006 WL 2523095 (N.D. Ga. Aug. 28, 2006), where the

plaintiffs advocated a 60 percent floor on benefits. White has not cited any

authority to support his argument that a fiduciary’s knowledge of how a disputed

term was applied in collateral litigation renders that fiduciary incapable of

conducting a full and fair review. As the district court concluded, the consultation

of outside counsel by the committee mitigates any concerns about fairness and

prejudgment. See Adams v. Thiokol Corp., 231 F.3d 837, 845 (11th Cir. 2000).

Fairness and prejudgment may be relevant to the determination whether the

decision of the committee was arbitrary and capricious, but do not warrant a less-

deferential standard of review.

White advocates a rule where an administrator cannot provide a plaintiff a

full and fair review if the plaintiff is challenging a provision of a plan and the

administrator previously was involved in a suit about the interpretation of that

provision. This rule is unworkable. Administrators must constantly interpret

plans, and an administrator occasionally will be sued by a participant who

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disagrees with the administrator’s interpretation.

White argues that John Howland, a member of the committee who voted to

deny White’s appeal, has a conflict of interest because he had been involved in the

initial determination to offset White’s benefits. The record does not support this

argument. The emails relied upon by White do not evidence that Howland was

involved in the initial decision to apply the offset and recoupment provisions to

White’s benefits.

The plan gives the committee discretion “to decide all questions arising

under the Plan.” The arguments of White and Warner that we should strip the

committee of this discretion fail. Because section 7.2(b) of the plan gives the

committee discretion, we review the interpretation of the offset and recoupment

provisions by the committee under the “deferential arbitrary and capricious

standard.” Williams, 373 F.3d at 1138.

3. The Interpretation of the Offset Provision by Coca-Cola is Reasonable.

“As long as a reasonable basis appears for [the] decision [of the

Committee], it must be upheld as not being arbitrary or capricious, even if there is

evidence that would support a contrary decision.” Jett v. Blue Cross & Blue

Shield of Ala., Inc., 890 F.2d 1137, 1140 (11th Cir. 1989). As we explained

earlier, the proviso clause conflicts with several provisions of the plan, which

17

creates an ambiguity. After the committee identified this ambiguity, it was

permitted to consider extrinsic evidence to resolve it. Thiokol, 231 F.3d at 844;

see also Stewart, 980 F.2d at 702.

The committee reasonably interpreted the proviso clause to make it

consistent with the summary plan description, the past practices of Coca-Cola, and

the other provisions of the plan. The summary plan description clearly explains

the reduction of benefits if a participant receives benefits from other sources and

provides an arithmetical example of the offset. The committee determined that it

had been the established practice of Coca-Cola to permit an offset below 60

percent of a participant’s average compensation. See Thiokol, 231 F.3d at 844

(fiduciary properly considered how a disputed plan provision had been interpreted

in the past to resolve an ambiguity); Carriers Container Council, Inc. v. Mobile

S.S. Ass’n Inc.-Int’l Longshoreman’s Ass’n, 896 F.2d 1330, 1339 (11th Cir.

1990). The committee retained and followed the advice of outside counsel

regarding both the offset and recoupment provisions. “There is no requirement

that an administrator . . . seek independent counsel in interpreting and

administering an ERISA plan,” but seeking counsel establishes the

“evenhandedness of [the] decision-making process” because it contributes to

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“informed and knowledgeable decisions . . . in interpreting the Plan.” Thiokol,

231 F.3d at 835.

White and Warner argue that the interpretation of the offset provision by the

committee ignores the contra proferentem doctrine in Georgia law, but this

argument fails. “[W]hen a federal court construes an ERISA-regulated benefits

plan, the federal common law of ERISA supersedes state law.” Buce v. Allianz

Life Ins. Co., 247 F.3d 1133, 1142 (11th Cir. 2001). We have rejected contra

proferentem in ERISA appeals, except during the first step of the Williams

analysis, because “[t]he ‘reasonable interpretation’ factor and the arbitrary and

capricious standard of review would have little meaning if ambiguous language in

an ERISA plan were construed against the [plan administrator].” Cagle, 112 F.3d

at 1519. Because we agree with the district court that Coca-Cola reasonably

interpreted the offset provision, we next consider whether the committee operated

under a conflict of interest.

4. The Committee Did Not Operate Under a Conflict of Interest.

White and Warner argue that the committee operated under a conflict of

interest, but we disagree. White and Warner argue that the committee operated

under a conflict of interest because the third-party administrator pays benefits to

participants and is later reimbursed by the trust, but they cite no authority for this

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argument. The delegation of a ministerial task to the third-party administrator

does not create a conflict because benefits are paid by the trust and Coca-Cola

“incurs no immediate expense as a result of paying benefits.” Gilley v. Monsanto

Co., Inc., 490 F.3d 848, 856 (11th Cir. 2007).

White and Warner contend that benefits are paid from the general assets of

Coca-Cola and rely on two forms filed with the IRS in 2003 and 2004, which state

that benefits were paid from both the trust and the general assets. Viewing this

evidence in the light most favorable to White and Warner, the forms do not prove

that benefits were paid from general assets in 2002 when the offset and

recoupment provisions were applied to Warner, in 2005 when the provisions were

applied to White, or in 2006 when White filed his appeal with the committee.

White and Warner also argue that passages from several administrative

information booklets, which accompany the summary plan descriptions each year,

prove that benefits are paid from the general assets of Coca-Cola, but White and

Warner misstate these passages, which state that general assets may be used to

fund several benefits plans and that the “Long Term Disability Plan is funded

through a trust to which the Company contributes.”

The committee does not operate under a conflict of interest. “Our circuit

law is clear that no conflict of interest exists where benefits are paid from a trust

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that is funded through periodic contributions so that the provider incurs no

immediate expense as a result of paying benefits.” Id. at 856; see also Buckley v.

Metro. Life, 115 F.3d 936, 939–40 (11th Cir. 1997). Under the plan, a

participant’s benefits are paid by the third-party administrator, which is refunded

by the trust. Coca-Cola makes periodic, nonreversionary payments to the trust.

B. Coca-Cola Correctly Interpreted the Recoupment Provision.

White and Warner next argue that the interpretation of the recoupment

provision by the committee is de novo wrong and unreasonable. White and

Warner contend that Coca-Cola cannot seek reimbursement of an overpayment of

their benefits because Coca-Cola cannot establish that they were overpaid and the

recoupment provision is unenforceable. We disagree.

The interpretation of the recoupment provision by the committee is de novo

correct. The plain language of sections 4.2(d) and (e) of the plan permits the

withholding of future benefits to recover any overpayment arising from a

retroactive payment of benefits from outside sources. White and Warner offer no

argument that this language is ambiguous.

White and Warner make four arguments about why the interpretation of the

recoupment provision by the committee is erroneous, but these arguments fail.

First, White and Warner argue that they were not overpaid, but this argument is

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based on their interpretation of the offset provision, which is foreclosed by the

reasonable interpretation of that provision by the committee. Second, White and

Warner argue that Coca-Cola cannot seek a legal remedy under section 502(a)(3)

of ERISA, which permits plan fiduciaries to seek only equitable relief. Although

there are several decisions by the Supreme Court and our Circuit about what kind

of relief is available to fiduciaries who sue beneficiaries under section 502(a)(3),

see, e.g., Sereboff v. Mid Atl. Med. Servs., Inc., 547 U.S. 356, 126 S. Ct. 1869

(2006); Popowski v. Parrott, 461 F.3d 1367 (11th Cir. 2006), these decisions are

inapposite because Coca-Cola has not sought judicial relief. Third, White and

Warner argue that Coca-Cola may not recover any overpayment from their Social

Security benefits, which they allege are protected from claims under federal law,

Philpott v. Essex County Welfare Bd., 409 U.S. 413, 93 S. Ct. 590 (1973), but

Coca-Cola is withholding future benefits under the plan. Fourth, White and

Warner cite Smith v. Life Insurance Co. of North America, 466 F. Supp. 2d 1275

(N.D. Ga. 2006), for the proposition that ERISA precludes the enforcement of the

recoupment provision, but that decision is inapposite. In Smith, the district court

concluded, “Despite the [subrogation] language of the Plan, the federal common

law make whole doctrine precludes [a plan administrator] from off-setting its

monthly disability benefits” to account for a participant’s tort recovery unless the

22

participant has been “made whole.” Id. at 1286. This appeal does not involve a

tort recovery or the make whole doctrine.

IV. CONCLUSION

We affirm the summary judgment in favor of Coca-Cola.

AFFIRMED.

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