Opposition Brief — Aetna Life Insurance v. Kane

“"Upreme Court, U.S,

rit cz

. AUG 15 1890

No. 90-51 JOSEPH F gang

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-

IN THE

Supreine Court of the United States

OCTOBER TERM, 1990

AETNA LIFE INSURANCE COMPANY, a Connecticut corpo-

ration, doing business in Florida, and SOUTHERN BELL

TELEPHONE & TELEGRAPH COMPANY,

Petitioners,

¥.

KENNETH KANE, individually and as Guardian, next

friend and on behalf of JONATHAN ANDREW KANE, a

minor,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

RESPONDENT'S BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

RICHARD H. LEVENSTEIN *

JAMES G. LEECH

BOND, SCHOENECK & KING

Suite 1002, Crocker Plaza

5355 Town Center Road

Boca Raton, Florida 33486

(407) 368-1212

* Counsel of Record Attorneys for Respondent

esteenidines aciiiehieseontie =

WILSON - Epgs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

Whether the Suggestion for Rehearing In Banc filed

by Petitioners tolled the 90-day jurisdictional time

period for filing the Petition for Writ of Certiorari.

. Whether the Circuit Court of Appeals’ decision in

Kane v. Aetna, 893 F.2d 1283 (11th Cir. 1990), con-

fiicts with decisions of this Court or other circuits.

Whether federal courts have the authority to apply

the federal common law doctrine of equitable estoppel

to enforce an interpretation of ambiguous provisions

of a benefit plan in an action under the Employee

Retirement Income Security Act of 1974, 29 U.S.C.S.

§$§ 1001-1461 (1990) (“ERISA’’).

(i)

TABLE OF CONTENTS

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IE OE PPI EI onc n.snsnsensncscceesencnnecccescesees

Neen eA sacpdatiatieenomnshaketssankesnndsamssanantas

STATUTORY PROVISIONS INVOLVED ....................

STATEMENT OF THE CASE ..........0....0..0...002.22-2e-000--

eS Gy PS Le) 0) |). y ian

REASONS FOR DENYING THE WRIT .....................

THE PETITION FOR WRIT OF CERTIORARI IS

UNTIMELY AND MUST BE DENIED ................

THE DECISION OF THE CIRCUIT COURT OF

APPEALS DOES NOT CONFLICT WITH DECI-

SIONS OF THIS COURT OR OTHER CIRCUIT

I, IS ooo ise scnscesavennncennskosncnnensnncsaes:

A. The holding of the Circuit Court of Appeals

does not conflict with decisions of this Court........

B. The holding of the Circuit Court of Appeals

does not conflict with its own earlier decisions...

C. The decision of the Court of Appeals does not

conflict with decisions of other circuit courts...

(i) Ninth Circuit Authority ......00000000..0...

ec acannonuenscuonbnananctscieness

acids ansibnanendlanannssccensnunisianecsnscshsanse

Page

25

References to the record are designated “R.’”; references to the

Petition for Writ of Certiorari are designated ‘“P.C.”

(iii)

iv

TABLE OF AUTHORITIES

Cases Page

Aitken v. IP & GCU-Employer Retirement Fund,

604 F.2d 1261 (9th Cir. 1979) 0.00.0... 23

Black v. TIC Inv. Corp., 900 F.2d 112 (7th Cir.

SERRE DER Sc RENN CSU is Race TRO a ee 17

Cann v. Carpenters Pension Trust, 662 F. Supp.

ee en I I la re 22

Cefalu v. B.F. Goodrich Co., 871 F.2d 1290 (5th

RRR rer ee chore ee NR I SO 25

Davidian v. Southern California Meat Cutters

Union and Food Employees Ben. Fund, 859 F.2d

SU UI aides 22, 23

Degan v. Ford Motor Co., 869 F.2d 889 (5th Cir.

SURED <ihethesicieiareiandaeh Pccecsestdidacdtinnbasinnieibshasiaiaenaicide haces 24

Department of Banking v. Pink, 317 U.S

UTI iciossssculesienitcbnasonsianteiciioiedatnaaansemmmataadicaedsdaddaeaas 13

Firestone Tire and Rubber Co. v. Bruch, —— US.

, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)........ 11

Hansen v. Western Greyhound Retirement Plan, =

859 F.2d 779 (9th Cir. 1988) .......... 23

Johnson v. Three Bays Properties No. 2, Inc., 159

So.2d 924 (Fla. Dist. Ct. App. 1964) 2000000000... 21

Kane v. Aetna, 893 F.2d 1283 (1ith Cir. 1990) ..11, 17-20

Metropolitan Life Insurance Co. v. Taylor, 481

a EE IIT sccccasnchinsslcoraicascancinensamnncapcaamaieaianian 18

Missouri v. Jenkins, -— U.S. ——, 58 U.S.L.W.

4480 (U.S. April 18, 1990) -..........0.0. ee. . 18-15

Moody v. Albemarle Paper Co., 417 U.S. 622

RUE UD ciislls Stile iieisiglinideaasehasseahisie pheaieandaaamaneeemabanmaninaaeh 14

Moore v. Metropolitan Life Insurance Co., 856

PF FL a rN 24

Moore v. Provident Life and Accident Insurance

Co., 786 F.2d 922 (9th Cir. 1986) ......................... 23

Nachwalter v. Christie, 805 F.2d 956 (11th Cir.

RE Whiecis sivas enepiauteins habia caseaciendienl nicaclh Aa siasihde es peabtdciedel 19, 20, 21

Oates v. Teamster Affiliates Pension Plan, 482 F.

BR ke RR ern ECT 23

Parker v. Illinois, 333 U.S. 571 (1948) -....0000........ 13

Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41

EIEINIEEN incohisreicsieiaciienabiaveatenmaceaa Aianicinhanabaiiiadacicanirne 18, 19

Vv

TABLE OF AUTHORITIES—Continued

Page

Rust Land & Lumber Co. v. Jackson, 250 U.S. 71

IID <scicicnsnscesrrnihccrcoesioscnsnan sacadentacarleaabbaenmnncaadin lamba 13

Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1

UII ccecssscntcsesaneicescaannebionsisetiebeabnneteiephacboasalateaaiiecscan tiie 14

Straub v. Western Union Telegraph Co., 851 F.2d

Ee CE Se I Si elaitsterntisinhetncnaeans 24

Thurber v. Western Conference of Teamsters

Pension Plan, 542 F.2d 1106 (9th Cir. 1976)... 23

Toledo Scale Co. v. Computing Scale Co., 261 U.S.

BI CII ins crentnnicensissansnesianeinh tenis bladeincuetsiianiatiemmnavian 18

Western Pacific R. Corp. v. Western Pacific R. Co.,

Tie Me I oc aetcctcnsnetccccetnnaiincsccctesarclintorenteniioae 14

Statutes

et IR aon ennict danenlaccisapesiabanetenesaantaemaaaiel 2,13

Ns Br MIs coxnaceboesaccseussinaveumnnenecébenbeesinseetueesabiniias 23

LR Bot | ene y EET TrR 2, 3, 18-25

i, Ts CN I asineenrennccccsnnsvssrinnsminngneeiaainiannann 9

Rules

£2 Ry nee emer sahcasueseniiaiaianel 3, 138, 16

RS SS Bearer 5, 18, 14, 15, 16

SON I AI, SEO Ia sigicninnssrsscccecenenssannannaieneiettichasilenel 7,13

SN . aN Ere Nm a 7,16

lith Cir. R. 36-3................. Diciecubimansdvenmedbeedateiaaee 15

Se I ei psanstnencsansei viiecesssaieaveesaoneenee 5, 6, 16

Be I iccniiscbietaastasannnerenceientasandedaneinaden 8, 16

Other Authorities

2 M. Rhodes, Couch Cyclopedia of Insurance Law

re i BD eclcewteimnsieioesienetion 20

i, BI IIE cn iccissctsncinannnntinenannlimaanianiinrins 18

Black’s Law Dictionary 733 (5th ed. 1979) .............. 20, 21

Ward, The Federal Rules of Appellate Procedure,

ey ys, CE hnvietesiniccinctrerdctsticcn 14

IN THE

Supreme Court of the United States

OCTOBER TERM, i990

No. 90-51

AETNA LIFE INSURANCE COMPANY, a Connecticut corpo-

ration, doing business in Florida, and SOUTHERN BELL

TELEPHONE & TELEGRAPH COMPANY,

Petitioners,

Vv.

KENNETH KANE, individually and as Guardian, next

friend and on behalf of JONATHAN ANDREW KANE, a

minor,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

RESPONDENT'S BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

Respondent, Kenneth Kane, individually and as Guar-

dian, next friend and on behalf of Jonathan Andrew

Kane, respectfully requests this Court to deny the Peti-

tion for Writ of Certiorari seeking review of the deci-

sion of the Circuit Court of Appeals dated February 7,

1990. That opinion is reported at 893 F.2d 1283 (11th

Cir. 1990).

2

JURISDICTION

Respondent adopts the statement on “Jurisdiction” as

set forth in che Petition for Writ of Certiorari at 2, but

denies that the jurisdiction of this Court has been prop-

erly invoked and further urges this Court not to exer-

cise its discretionary powers to review this matter. Re-

spondent adds that the Petition for Writ of Certiorari

was not filed until July 5, 1990, 148 days after the judg-

ment of the Circuit Court of Appeals was entered, and

was not received by Respondent’s counsel until July 16,

1990.

STATUTORY PROVISIONS INVOLVED

Respondent sets forth the following pertinent statutes

and Rules and agrees that 29 U.S.C.S. $$ 1001(b), (ce);

1003(a); 1002 ste [1102]; 1132; 1144, set forth in the

Petition for Writ of Certiorari, are also relevant.

1. 28 U.S.C.S. § 2101 (1990). Supreme Court; time for

appeal or certiorari; docketing; stay

* * * *

(ce) Any other appeal or any writ of certiorari in-

tended to bring any judgment or decree in a civil

action, suit or proceeding before the Supreme Court

for review shall be taken or applied for within ninety

days after the entry of such judgment or decree. A

justice of the Supreme Court, for good cause shown,

may extend the time fer applying for a writ of cer-

tiorari for a period not exceeding sixty days.

2. 29 US.C.S. § 1022(a) (1990). Plan description and

summary plan description

(a)(1) A summary plan description of any em-

ployee benefit plan shall be furnished to participants

and beneficiaries as provided in section 104(b) [29

U.S.C.S. § 1024(b)] of this title. The summary plan

description shall include the information described in

subsection (b) of this section, shall be written in a

manner calculated to be understood by the average

plan participant, and shall be sufficiently accurate

or

3

and comprehensive to reasonably apprise such par-

ticipants and beneficiaries of their rights and obli-

gations under the plan. A summary of any material

modification in the term of the plan and any change

in the information required under subsection (b) of

this section shall be written in a manner calculated

to be understood by the average plan participant and

shall be furnished in accordance with section 104

(b) (1) [29 U.S.C.S. 1024 (b) (1) ] of this title.

29 U.S.C.S. $ 1104(a) (1) (1990). Fiduciary duties

(a) Prudent man standard of care (1) Subject to

sections 403(c) and (d) [29 U.S.C.S. $$ 1103(c)

and (d)], 4042 [29 U.S.C.S. § 1842], and 4044 [29

U.S.C.S. § 1344], a fiduciary shall discharge his

duties with respect to a plan solely in the interest of

the participants and beneficiaries and—

(A) for the exclusive purpose of :

(i) providing benefits to participants and

their beneficiaries; . . .

29 U.S.C.S. $ 1144(e) (1) (1990). Other laws

* * * *

(ce) Definitions

For purposes of this section:

(1) The term “State law” includes all laws, deci-

sions rules, regulations, or other State action having

the effect of law, of any State. A law of the United

States applicable only to the District of Columbia

shall be treated as a State law rather than a law of

the United States.

Sup. Ct. R. 18. Review on Certiorari; Time for

Petitioning

1. A petition for a writ of certiorari to review a

judgment in any case, civil or criminal, entered by

a state court of last resort, a United States court of

appeals, or the United States Court of Military Ap-

peals shali be deemed in time when it is filed with

the Clerk of this Court within 90 days after the

4

entry of the judgment. A petition for a writ of cer-

tiorari seeking review of a judgment of a lower state

court which is subject to discretionary review by the

state court of last resort shall be deemed in time

when it is filed with the Clerk within 90 days after

the entry of the order denying discretionary review.

.2. A Justice of this Court, for good cause shown,

may extend the time to file a petition for a writ of

certiorari for a period not exceeding 60 days.

.3. The Clerk will refuse to receive any petition for

a writ of certiorari which is jurisdictionally out of

time.

4. The time for filing a petition for a writ of cer-

tiorari runs from the date the judgment or decree

sought to be reviewed is rendered, and not from the

date of the issuance of the mandate (or its equiv-

alent under local practice). However, if a petition

for rehearing is timely filed in the lower court by

any party in the case, the time for filing the petition

for a writ of certiorari for all parties (whether or

not they requested rehearing or joined in the petition

for rehearing) runs from the date of the denial of

the petition for rehearing or the entry of a subse

quent judgment. A suggestion made to a United

States court of appeals for a rehearing in banc pur-

suant to Rule 35(b), Federal Rules of Appellate Pro-

cedure, is not a petition for rehearing within the

meaning of this Rule.

* * ~ *

.6. An application to extend the time to file a peti-

tion for a writ of certiorari must set out the grounds

on which the jurisdiction of this Court is invoked,

must identify the judgment sought to be reviewed

and have anpended thereto a copy of the opinion and

any order respecting, and must set forth with spe-

cificity the reasons why the granting of an extension

of time is thought justified. For the time and man-

ner of presenting the application, see Rules 21, 22

and 30. An application to extend the time to file a

petition for a writ of certiorari is not favored.

5

6. Fed. R. App. P. 35. Determination of causes by the

court in banc.

(a) When hearing or rehearing in bane will be or-

dered.—A majority of the circuit judges who are in

regular active service may order that an appeal or

other proceeding be heard or reheard by the court

of appeals in bane. Such a hearing or rehearing is

not favored and ordinarily wiil not be ordered except

(1) when consideration by the full court is necessary

to secure or maintain uniformity of its decisions, or

(2) when the proceeding involves a question of ex-

ceptional importance.

(b) Suggestion of a party for hearing or rehearing

in banc.—a party may suggest the appropriateness

of a hearing or rehearing in bane. No response shall

be filed unless the court shall so order. The clerk

shall transmit any such suggestion to the members

of the panel and the judges of the court who are in

regular active service but a vote need not be taken

to determine whether the cause shail be heard or re-

heard in bane unless a judge in regular active serv-

ice or a judge who was a member of the panel that

rendered a decision sought to be reheard requests a

vote on such a suggestion made by a party.

(ec) Time for suggestion of a party for a hearing or

rehearing in banc; suggestion does not stay mandate.

—If a party desires to suggest that an appeal be

heard initially in bane, the suggestion must be made

by the date on which the appellee’s brief is filed. A

suggestion for a rehearing in bane must be made

within the time prescribed by Rule 40 for filing a

petition for rehearing, whether the suggestion is

made in such petition or otherwise. The pendency of

such a suggestion whether or not included in a peti-

tion for rehearing shall not affect the finality of the

judgment of the court of appeals or stay the issu-

ance of the mandate.

7. 11th Cir. R. 35-6. Form of Suggestion. A suggestion

of in banc consideration shall be bound in a white

6

cover which is clearly labeled with the title “Sugges-

tion of Rehearing (or Hearing) in Banc”. A sug-

gestion of rehearing in banc will also be treated as

a petition for rehearing before the original panel.

A petition for rehearing will not be treated as a sug-

gestion of rehearing in bane. A suggestion of in

bane consideration shall contain the following items

in this sequence:

(a) a cover page as required by 11th Cir. R. 28-

2(a);

(b) a certificate of interested persons as required by

11th Cir. R. 28-2(b) ;

(c) where the party suggesting in bane considera-

tion is represented by counsel, one or both of the

following statements of counsel as applicable:

I express a belief, based on a reasoned and studied

professional judgment, that the panel decision is con-

trary to the following decision(s) of the Supreme

Court of the United States or the precedents of this

circuit and that consideration by the full court is

necessary to secure and maintain uniformity of de-

cisions in this court: [cite specifically the case or

cases |]

I express a brief, based on a reasoned and studied

professional judgment, that this appeal involves one

or more questions of exceptional importance. [set

forth each question in one sentence]

/s/

Attorney of Record for

(d) table of contents and citations;

(e) statement of the issue(s) asserted to merit in

banc consideration;

(f) statement of the course of proceedings and dis-

position of the case;

(g) statement of any facts necessary to argument of

the issues;

7

(h) argument and authorities. These shall concern

only the issues and shall address specifically not

only their merit but why they are contended to

be worthy of in banc consideration;

(i) conclusion;

(j) certificate of service.

Fed. R. App. P. 40(a). Petition for rehearing

(a) Time for filing; content; answer; action by

court if granted.—A petition for rehearing may be

filed within 14 days after entry of judgment unless

the time is shortened or enlarged by local rule. The

petition shall state with particularity the points of

law or fact which in the opinion of the petitioner the

court has overlooked or misapprehened and shall con-

tain such argument in support of the petition as the

petitioner desires to present. Oral argument in sup-

port of the petition will not be permitted. No answer

to a petition for rehearing will be received unless re-

quested by the court, but a petition for rehearing will

ordinarily not be granted in the absence of such a

request. If a petition for rehearing is granted the

court may make a final disposition of the cause with-

out reargument or may restore it to the calendar for

reargument or resubiaission or may make such other

orders as are deemed appropriate under the circum-

stances of the particular case.

Fed. R. App. P. 47. Rules by courts of appeals

Each court of ‘appeals by action of a majority of

the circuit judges in regular active service may from

time to time make and amend rules governing its

practice not inconsistent with these rules. In all

cases not provided for by rule, the court of appeals

may regulate their practice in any manner not in-

consistent with these rules. Copies of all rules made

by a court of appeals shall upon their promulgation

be furnished to the Administrative Office of the

United States Courts.

10. 11th Cir. R. 41-1(d). Stay or Recall of Mandate.

* * * _

(d) Because the timely filing of a petition for re

hearing will stay the mandate under FRAP 41, and

because a suggestion of rehearing in banc is also

treated as a petition for a panel rehearing under

11th Cir. R. 35-6, upon timely filing of a petition for

panel rehearing or suggestion of rehearing in banc,

the mandate is stayed until disposition thereof unless

otherwise ordered by the court.

STATEMENT OF THE CASE

Kenneth Kane (“Respondent”) works for BellSouth

Corporation (“BellSouth”) as a repair technician and is

covered under the company’s medical expense plan (the

“Medical Plan”). (R. 28, Depo. of Kane at 8.) Bell-

South furnished Respondent with a written summary

plan description (the “Summary Plan”) which described

the requirements and benefits of the Medical Plan in a

general manner, giving employees only very basic infor-

mation concerning the Medical Plan. (R. 28, Depo. of

Kane at 20, 30-31.)

Respondent and his wife were considering adopting a

second child and learned of a newborn at Plantation

General Hospital (the “Hospita’) who might be avail-

able for adoption. (R. 28, Depo. of Mrs. Kane at 8-10).

The newborn (“Jonathan”) had been put up for adop-

tion by his natural mother. Before he was born, a couple

had agreed to adopt Jonathan, but changed their minds

upon learning that he was born with serious medical

disabilities.

Jonathan was born prematurely. He was afflicted with

Hyalin Membrane Disease. He was also being treated

for meningitis and serious breathing troubles. (R. 28,

Depo. of Kane at 43.) Although Respondent and his

wife wanted to adopt Jonathan after first visiting him

in the Hospital, they were uncertain whether they would

9

be able to do so because of their inability to afford the

substantial medical bills Jonathan had amassed and his

anticipated future medical bills. (R. 28, Depo. of Kane

at 43, 64-65.)

Thus, Respondent and his wife sought to ascertain

whether Jonathan’s birth and medical expenses would be

covered under the Medical Plan. (R. 28, Depo. of Mrs.

Kane at 11-13.) The Summary Plan states that adopted

children, including those who are in the formal legal

process of adoption, are covered under the Plan. (Ap-

pendix to Respondent’s Initial Brief on Appeal, Item No.

3, at 5.) The Plan does not further define the term

“adoption.” 1 Respondent’s wife called the toll free num-

ber listed on the inside cover of the Summary Plan under

the heading “Telephone Inquiries” and spoke with Aetna

Life Insurance Company’s (“Aetna’s”) office. (R. 28,

Depo. of Mrs. Kane at 8, 11-14; Appendix to Respond-

ent’s Initial Brief on Appeal, Item No. 3.)

Aetna’s office is staffed by knowledgeable and trained

representatives, employed for the sole purpose of verify-

ing coverage and eligibility under the Medical Plan pur-

suant to Aetna’s agreement with BellSouth. Aetna is

aware that hospitals and beneficiaries of the Medicai

Plan rely on verbal confirmations of coverage or elig-

ibility on a daily basis, making sometimes critical med-

ical decisions based on the information they receive. (R.

38, Depo. of Knight at 4-8, 12-13, 22; R. 36, Depo. of

Brock at 12-16.) In her deposition, Respondent’s wife

related the conversation as follows:

I told here [Aetna’s staff representative] we were

interested in a baby that was up for adoption. It

was in the hospital. And we wanted to know if that

1 Respondent has consistently maintained that Jonathan was in

the formal legal process of adoption at his birth. Pursuant to

Chapter 63, Florida Statutes, the natural mother’s consent putting

a child up for adoption is irrevocable. Jonathan’s natural mother

had formally agreed to put him up for adoption prior to birth and

executed the consent at birth.

10

child would be covered. And she said yes, there was

no question of it, you know, that any adopted child

would be covered under our policy. And I told her,

“it’s just as simple as that?” And she said, “Yes,

as soon as the adoption proceedings had started that

child would be legally covered by our policy.” (R. 28,

Depo. of Mrs. Kane at 18-19.)

Maria Almendros, an insurance verifier for the Hos-

pital, testified that she also telephoned Aetna’s office to

confirm that Jonathan was covered under Respondent’s

Medical Plan. Ms. Almendros stated that she spoke with

Lori Knight, one of Aetna’s trained representatives,

who verified coverage for Jonathan. (R. 28, Depo. of

Almendros at 5-11, 14-16, 20, 21, 27, 28.) No Aetna

representative denied that coverage was verified.

Relying upon Petitioners’ interpretation of the Plan

and assurances that Jonathan’s medical expenses would

be paid, Respondent and his wife adopted Jonathan. (R.

28, Depo. of Kane at 64-65). However, much to their

surprise, when they filed for Jonathan’s medical ex-

penses, their entire claim was denied. (R. 36, Depo. of

Brock at 26.)

In spite of its assurances of coverage, Aetna at-

tempted to justify the subsequent denial by claiming that

medical expenses for a continuous hospital stay were not

covered where hospitalization began prior to the effective

date of coverage. Aetna maintained that adoption pro-

ceedings had not begun until after Jonathan was in the

hospital. Respondent has consistently maintained that

the denial of benefits was wrongful. Aetna knew Jona-

than was already in the hospital when Respondent and

his wife were deciding whether to adopt him. Further,

Respondent has always maintained that Jonathan was

already in the process of adoption when he was born.

See n. 1, supra.

Respondent filed this action seeking recovery of unpaid

bencfits, alleging equitable estoppel and wrongful denial

11

of benefits. The District Court granted Petitioners’ Mo-

tion for Summary Judgment and dismissed Respondent’s

claims holding that ERISA preempts all state common

law causes of action relating to employee benefit plans.

Respondent appealed the dismissal.

The Circuit Court reversed, holding that Federal

Courts possess autherity to develop a body of federal

common law under ERISA and that no modification or

amendment to the plan was involved, but rather an inter-

pretation of ambiguous provisions. The Court stated

that the:

(f}ederal common law of equitable estoppel may be

applied in this case because the representations made

by Aetna to Mrs. Kane [Respondent’s wife] and the

hospital were interpretations of the Plan, and not

modifications. (Emphasis in original.) ”

Kane v. Aetna, 893 F.2d 12838, 1285 (11th Cir. 1990).

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari was filed 148 days

after final judgment was entered by the Court of Ap-

peals. Although Petitioners filed a Suggestion for Re-

hearing In Banc, that filing does not toll the time for

filing a petition for writ of certiorari. Therefore, the

Petition for Writ of Certiorari is untimely and must be

dismissed.

The Circuit Court of Appeals held that federal courts

have the authority to apply the federal doctrine of equi-

2The Court of Appeals did not reach Respondent’s claim for

wrongful denial of benefits because it held that Respondent was

entitled to recovery on the basis of equitable estoppel. Respondent

has not abandoned its claim for wrongful denial. A claim that bene-

fits were wrongfully denied in a suit for recovery of unpaid benefits

is precisely the type of claim contemplated by 29 U.S.C.S. § 1132.

See, Firestone Tire and Rubber Co. v. Bruch, —— U.S. , 109

S.Ct. 948, 103 L.Ed.2d 80 (1989).

12

table estoppel in an ERISA action to enforce an inter-

pretation of ambiguous provisions of a benefit plan. Pe-

titioners have failed to show that the decision of the

Circuit Court of Appeals conflicts with decisions of this

Court or decisions of other federal appeals courts. Cases

cited by Petitioners do not address the federal common

law of equitable estoppel and do not involve an interpre-

tation of ambiguous plan provisions, but rather, plan

modifications or amendments. Thus, resolution of the

issues raised by the decision of the Circuit Court of Ap-

peals will not resolve a conflict and the Petition for Writ

of Certiorari should be denied.

Based solely on federal law, the decision of the Circuit

Court of Appeals does no violence to exclusive federal

regulation of employee benefit plans. This Court and the

legislature have anticipated the development of federal

common law in ERISA actions. Application of the fed-

eral doctrine of equitable estoppel is appropriate in this

action and does not conflict with provisions of ERISA.

The Circuit Court of Appeals expressly premised its

holding on the language of the plan itself. Kane, at

1286. Moreover, the Kane decision does not undermine

the integrity of the plan. Jd.

REASONS FOR DENYING THE WRIT

THE PETITION FOR WRIT OF CERTIORARI IS UN-

TIMELY AND MUST BE DENIED.

The judgment of the Court of Appeals was entered on

February 7, 1990. On February 27, 1990, Petitioners

filed a Suggestion for Rehearing In Banc. On April 6,

1990, the Court of Appeals denied the Suggestion.

On July 5, 1990, ninety days after the Suggestion for

Rehearing was denied and 148 days after the entry of

the Court of Appeals’ judgment, Petitioners filed a Peti-

tion for Writ of Certiorari.

To invoke the jurisdiction of this Court to review a

decision of a federal appeals court, a petition for writ of

13

certiorari must be filed within ninety days from the date

judgment is rendered. 28 U.S.C.S. § 2101; Sup. Ct. R.

13. Failure to file the petition within the ninety-day

period is fatal. Parker v. Illinois, 333 U.S. 571 (1948),

reh. den.; Toledo Scale Co. v. Computing Scale Co., 261

U.S. 399 (1923); Rust Land & Lumber Co. v. Jackson,

250 U.S. 71 (1919).

A timely petition for rehearing tolls the start of the

time period in which a petition for writ of certiorari

must be filed until rehearing is denied or a new judg-

ment is entered on the rehearing. Sup. Ct. R. 13.4; De-

partment of Banking v. Pink, 317 U.S. 264 (1942).

However, a suggestion for rehearing in banc does not

toll this time period. Supreme Court Rule 13, entitled

“Review on Certiorari; Time for Petitioning” expressly,

states that:

4. The time for filing a petition for a writ of

certiorari runs from the date the judgment or decree

sought to be reviewed is rendered, and not from the

date of the issuance of the mandate .... However,

if a petition for rehearing is timely filed in the lower

court by any party in the case, the time for filing the

petition for a writ of certiorari for all parties...

runs from the date of the denial of the petition for

rehearing or the entry of a subsequent judgment. A

suggestion made to a United States court of appeals

for a rehearing in banc pursuant to Rule 35(b),

Federal Rules of Appellate Procedure, is not a pett-

tion for rehearing within the meaning of this Rule.

(Emphasis added. )

Sup. Ct. R. 13.4.

Fundamental differences between a petition for re-

hearing and a suggestion for rehearing exist. As ex-

plained recently by this Court,

A petition for rehearing is designed to bring to the

panel’s attention points of 'aw or fact that it may

have overlooked. Fed. Rule App. Proc. 40(a). The

panel is required to consider the contentions in the

14

petition for rehearing, if only to reject them. Re-

hearing in bane is a discretionary procedure em-

ployed only to address questions of exceptional im-

portance or to maintain uniformity among Circuit

decisions. Fed. Rule App. Proc. 35(a). As the Re-

porter for the Advisory Committee drafting the

Rules has observed: “[A] party who desires a hear-

ing or rehearing in bane may ‘suggest’ the appro-

priateness of such a hearing. ... The term ‘suggest’

was deliberately chosen to make it clear that a

party’s sole entitlement is to direct the attention of

the court to the desirability of in bane consideration.

A suggestion is neither a petition nor a motion; con-

sequently, it requires no disposition by the court.”

Ward, The Federal Rules of Appellate Procedure,

28 Federal B.J. 100, 110-111 (1968) ; see also Moody

v. Albemarle Paper Co., 417 U.S. 622, 625 (1974)

(per curiam) ; Shenker v. Baltimore & Ohio R. Co.,

374 U.S. 1, 5 (1963); Western Pacific R. Corp. v.

Western Pacific R. Co., 345 U.S. 247, 258-259

(1953). Consequently, Rule 35(c) specifically pro-

vides that the filing of a suggestion for rehearing in

banc, unlike a petition for rehearing, “shall not af-

fect the finality of the judgment of the court of

appeals or stay of the issuance of the mandate.”

Missouri v. Jenkins, U.S. ——, 58 U.S.L.W 4480,

n. 14 (U.S. April 18, i990).

The Jenkins case is highly instructive on the issue of

the untimeliness of the Petition for Writ of Certiorari

in this action. There, three appellants filed documents

which were styled as a “. . . Petition for Rehearing En

Banc”, a “Petition for Rehearing En Banc with Sugges-

tions in Support”, and a “Petition . . . for Rehearing by

Court En Banc”.

This Court noted that, technically, there is no provi-

sion for the filing of a “Petition for Rehearing En Banc”

and expressly determined that:

If the filing was no more than a suggestion for re-

hearing in bane, as respondents insist, the Petition

15

for Certiorari was untimely. But if, as the State

argues, its paper qualified for treatment as a peti-

tion for rehearing within the meaning of Rule 40 as

well as a suggestion for rehearing in bane under

Rule 35, the 90-day period for seeking certiorari be-

gan on October 14, 1988, and the State’s Petition for

Certiorari was timely filed.

Id. at 4483. This determination was controlling.

Because it was unclear whether the documents filed in

Jenkins were petitions for rehearing, suggestions for re-

hearing in banc, or both, the Court held that the docu-

ments were qualified for treatment as petitions for re-

hearing. Only because the Court of Appeals had in fact

treated the documents as petitions for rehearing, did

the Jenkins Court find that the time for filing a petition

for writ of certiorari was tolled.

Significantly, in both form and substance, the docu-

ment filed by Petitioners in this action is a Suggestion

for Rehearing In Bane.

The document filed by Petitioners was styled as a

“Suggestion for Rehearing In Banc” (P.C., at 142), and

the sole relief requested was for the full court to take

jurisdiction of the suggestion to reverse the panel deci-

sion. (P.C., at 16a, 27a.) The Suggestion states that

consideration by the full court is “necessary to maintain

uniformity of its decisions” and that the proceeding in-

volves a “question of exceptional importance.” (P.C., at

16a.) These are the considerations expressly required by

Federal Rule of Appellate Procedure 35(a) and Eleventh

Cireuit Rule 35-3 to obtain a full rehearing in bane. Pe-

tioners’ Suggestion for Rehearing followed the exact for-

mat required by Eleventh Circuit Rule 35-6 and con-

tained the certificate and statements required by that

rule. (P.C., at 15a, 16a.) Nowhere in the document does

the phrase “petition for rehearing” appear. Even the

Petition for Writ of Certiorari concedes the do-ument

was a Suggestion for Rehearing In Bane. (P.C., at 2.)

16

Because the document which Petitioners filed was no

more than a suggestion for rehearing in banc, it is not

qualified for treatment as a petition for rehearing and

cannot toll the time for filing a petition for writ of

certiorari.

That the Eleventh Circuit local practice may be to

treat suggestions for rehearing in bane as petitions for

rehearing for purposes of delaying issuance of the man-

date or otherwise is irrelevant.

Respondent notes that Eleventh Circuit Rule 35-6 pro-

vides that “A suggestion of rehearing in banc will also

be treated as a petition for rehearing before the original

panel. . . .” and that Eleventh Circuit Rule 41-1(d)

states that “because a suggestion of rehearing in banc

is also treated as a petition for a panel rehearing under

Eleventh Circuit Rule 35-6, upon timely filing of a peti-

tion for panel rehearing or suggestion of rehearing in

bane, the mandate is stayed until disposition thereof un-

less otherwise ordered by the court.” However, nowhere

do the local rules of the Eleventh Circuit state that filing

a suggestion for rehearing in bance tolls the period for

filing a petition for writ of certiorari. In fact, for pur-

poses of computing the time pericd to file a petition for

writ of certiorari, the local rules do not in any manner

purport to treat a suggestion for rehearing in banc as a

petition for rehearing.

Moreover, the local practice of the Eleventh Circuit

cannot alter Supreme Court and federal appellate prac-

tice, which clearly state that a suggestion for rehearing

in bane does not affect the finality of the judgment and

does not toli the time for filing a petition for writ of

certiorari. Sup. Ct. R. 13; Fed. R. App. P. 35(c). Fed-

eral appeals courts are only empowered to enact rules

regulating their local practice to the extent that such

rules are consistent with the Federal Rules of Appellate

Procedure. Fed. R. App. P. 47. Any local rule or prac-

tice which, for purposes of computing the time period for

17

filing a petition for writ of certiorari, purports to treat

a suggestion for rehearing in banc as a petition for re-

hearing, would be directly contrary to the express man-

dates of Supreme Court Rule 13.4 and Federal Rule of

Appellate Procedure 35(c), and thus, would be invalid.

THE DECISION OF THE CIRCUIT COURT OF AP-

PEALS DOES NOT CONFLICT WITH DECISIONS OF

THIS COURT OR OTHER CIRCUIT COURTS OF

APPEAL.

The Kane decision is based solely on federal law and

therefore does not offend the notion that federal regula-

tion of employee benefit plans is exclusively a federal

concern. Because the holding in Kane is expressly based

upon an interpretation of ambiguous provisions of the

Medical Plan as written, application of the federal com-

mon law of equitable estoppel is not precluded as being

contrary to any issue expressly addressed by ERISA.

Kane v. Aetna, 893 F.2d 1283, 1285-86 (1990). As the

Circuit Court of Appeals found, because a modification

or amendment to the Plan was not involved, the fiscal

integrity of the Plan is not undermined and the ability

of employees and beneficiaries to rely on the terms of

such plans will remain unaffected. Jd. at 1286; see also,

Black v. TIC Inv. Corp., 900 F.2d 112, 115 (7th Cir.

1990). Petitioners are free to amend the Plan to elim-

inate ambiguity of its written terms.

A. The holding of the Circuit Court of Appeals does

not conflict with decisions of this Court. ERISA pre-

empts state laws which relate to employee benefit plans.

However, Petitioners have cited no decision of this Court

which holds that the doctrine of equitable estoppel may

never be applied to an ERISA action as part of federal

common law. The legislature and this Court have in

fact anticipated the development of a body of federal

common law to protect beneficiaries of ERISA plans:

“i]t is also intended that a body of Federal sub-

stantive law will be developed by the courts to deal

18

with issues involving rights and obligations under

private welfare and pension plans.”

Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 56

(1987) (quoting remarks of Sen. Javits, 120 Cong. Ree.

at 29942).

Petitioners rely heavily on the fact that ERISA con-

tains six integrated civil enforcement provisions which

were intended to be exclusive remedies, 29 U.S.C.S.

§ 1132. They reason that permitting recovery on the

basis of the federal common law of equitable estoppel

would expand these enforcement provisions.

What Petitioners fail to recognize is that the enforce-

ment provisions expressly authorize civil actions to be

brought by a participant or beneficiary to recover bene-

fits or enforce rights under the plan or to obtain other

appropriate “equitable relief.” 29 U.S.C.S. $$ 1132(a)

(1)(B), (3)(B).* Application of the doctrine of equi-

table estoppel to a suit to recover benefits does not expand

the civil enforcement provisions of ERISA by, for ex-

ample, permitting a beneficiary to institute an action to

collect civil penalties or enjoin an act or practice which

violates ERISA. See, 29 U.S.C.S. §$§ 11382(a) (5), (a)

(6). To relegate a beneficiary in Respondent’s position

to instituting a declaratory judgment action before de-

ciding whether to proceed with an adoption as Petition-

ers suggest is burdensome and contrary to express Con-

gressiona! intent.

3 See Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58

(1987) (holding that Respondent’s claims for breach of contract,

reimplementation of benefits and compensatory damages for money

owed stated a cause of action under the civil enforcement provisions

of ERISA: “Congress has clearly manifested an intent to make

causes of action within the scope of the civil enforcement provisions

of §502(a) removable to federal court. Since we have found Tay-

lor’s cause of action to be within the scope of §502(a), we must

honor that intent...”

19 \

B. The holding of the Circuit Court of Appeals does

not conflict with its own earlier decisions. Petitioners

complain that Kane conflicts with Nachwalter v. Christie,

805 F.2d 956 (11th Cir. 1986). To the contrary, the Cir-

cuit Court harmonized and explained Nachwalter, stat-

ing that although Respondent’s state common law cause

of action for equitable estoppel was preempted by

ERISA:

Federal courts possess the authority, however, to

develop a body of federal common law to govern

issues in ERISA actions not covered by the act itself.

Pilot Life, 481 U.S. at 56, 107 S.Ct. at 1557. This

court has held that the federal common law of equi-

table estoppel is not available to plaintiffs in cases

involving oral amendments to or modifications of

employee plans governed by ERISA because ERISA

specifically addresses these issues. Nachwalter v.

Christie, 805 F.2d 956, 960 (11th Cir. 1986) (con-

struing 29 U.S.C. § 1102(a) (1), which requires

that employee benefit plans must be “established and

maintained” pursuant to a written instrument’).

The district court found that Aetna’s representations

to Mrs. Kane and the hospital insurance verifier con-

stituted oral modifications of the Plan. Relying on

Nachwalter, the court held that all claims based on

these modifications were precluded under ERISA.

Appellant asserts that the federal common law-of

equitable estoppel may be applied in this case be-

cause the representations made by Aetna to Mrs.

Kane and the hospital were interpretations of the

Plan, and not modifications. We agree.

* - = — *

The provisions of the Plan at issue here are am-

biguous: reasonable persons could disagree as to

their meaning and effect.

” * * oe

These provisions clearly are subject to varying in-

terpretations.

20

* * * *

Given this ambiguity, we are of the opinion that

these events involved an oral interpretation of the

Plan, not an amendment or modification.

* * * *

Because the issue before us involves an oral inter-

pretation of an ERISA plan, the Nachwalter deci-

cision, which is limited to oral amendments and

modifications, is not controlling. See 805 F.2d at

960. The federal common law of equitable estoppel

may be applied to the facts of this case. See 2 M.

Rhodes, Couch Cyclopedia of Insurance Law § 15:54

(Rev. ed. 1984) (“An insurer, however, may be

estopped in reference to the meaning of a particular

term in one of its contracts by its own interpretation

of that term”). In reaching this conclusion, we are

unpersuaded by appellees’ argument that the applica-

tion of the federal common law of equitable estoppel

in this case would be contrary to the underlying pol-

icy of ERISA. Requiring appellees to adhere to the

oral interpretations of the Plan’s provisions made by

Aetna to Southern Bell employees will not undermine

the integrity of the Plan. Stating the question more

broadly, use of the law of equitable estoppel to en-

force oral interpretations of employee benefit plans

will not affect the ability of employees and beneficia-

ries to rely on the written terms of such plans. (Em-

phasis in original.)

Kane, at 1285-86.

The Court’s distinction is well founded. Black’s Law

Dictionary defines ‘“‘interpret” to mean:

To construe; to seek out the meaning of language;

to translate orally from one tongue to another.

In contrast, the term “modify” is defined to mean:

To alter; to change in incidental or subordinate

features; enlarge; extend; amend; limit, reduce.

Such alteration or change may be characterized, in

quantitative sense, as either an increase or decrease.

21

Johnson v. Three Bays Properties No. 2, Inc., Fla.

App., 159 So.2d 924, 926.

Black’s Law Dictionary 733, 905 (5th ed. 1979) (Em-

phasis added).

Moreover, a modification or amendment to a plan al-

ters coverage in all future cases and admittedly must

be in writing to be enforceable. 29 U.S.C.S. § 1102(a)

(1), (a) (3); Nachwalter, 805 F.2d at 960. In contrast,

to simply hold that Petitioners are estopped from dis-

claiming liability in a specific instance for their own

interpretation of an ambiguity in the Plan will not

alter coverage in future cases and does not modify the

Plan. Petitioners are free to remedy the ambiguity by

drafting the Plan more precisely.

C. The decision of the Court of Appeals does not con-

flict with decisions of other circuit courts. Petitioners

have cited no decision which precludes application of the

federal doctrine of equitable estoppel in an ERISA ac-

tion to enforce an express interpretation of ambiguous

provisions of a medical benefit plan, and Respondent is

aware of none.

There is discord among federal appeals courts on the

issue of whether the doctrine of equitable estoppel is

applicable to an ERISA action. However, redetermina-

tion of the issues raised by the Kane decision will not

resolve that conflict.

Kane is the first Court of Appeals decision of which

Respondent is aware, expressly holding that the federal

common law doctrine of equitable estoppel can be applied

to an action to recover unpaid benefits. Moreover, Kane

is based upon a limited set of factual circumstances: a

private welfare plan’s express interpretation of ambigu-

ous provisions of a medical plan and affirmative repre

sentations of coverage. No case cited by Petitioners in-

volves these specialized circumstances. Thus, Kane does

not conflict with decisions of any other federal appellate

court.

22

(i) Ninth Circuit Authority

Although Ninth Circuit authority is in a state of flux,

no cited Ninth Circuit decision holds that the application

of equitable estoppel to an ERISA action is precluded

under all circumstances. Moreover, no cited case involves

the interpretation of an ambiguous provision of an em-

ployee welfare benefit plan.

Cann v. Carpenters Pension Trust, 662 F. Supp. 501

(C.D. Cal. 1987) sets forth a considered analysis of

Ninth Circuit authority.«. Mr. Cann was informed by

his pension plan that he had lost his eligibility due to a

break in service. In reliance on the asserted loss, he did

nothing further to maintain eligibility under the plan.

Mr. Cann contested the plan’s decision and ultimately

obtained a reversal of its interpretation of ineligibility.

Noting that the doctrine of estoppel was “a weapon in

this court’s arsenal of inherent equitable powers,” the

Cann court held that the plan was estopped from assert-

ing that Mr. Cann was ineligible for benefits due to his

failure to maintain eligibility subsequent to the plan’s

erroneous interpretation that eligibility had been lost due

to the break in service. Jd. at 505.

Reviewing relevant Ninth Circuit authority, the Cann

court reconciled the decisions into three groups:

In the first group of cases, the courts appear to

recognize the applicability of estoppel but refuse to

apply it because the courts would be compelling a

trust to commit an illegal act [by compelling pay-

ment of benefits where the unambiguous written

terms of the plan expressly and directly forbid it].

A second group of cases also recognizes the estoppel

doctrine, but in those cases the courts found that the

4 Davidian v. Southern California Meat Cutters Union and Food

Employees Ben. Fund, 859 F.2d 134, 136, n.3 (9th Cir. 1988), spe-

cifically left the analysis in Cann undisturbed. Moreover, Davidian’s

holding is fully consistent with the analysis in Cann.

Peat

23

fact patterns would not support application of the

doctrine. Finally, in a third group of cases, the

courts appear to take a broad view of that estoppel

can never be used in reviewing pension plan deci-

sions. Accepting the view of this third group of

cases would require this court to ignore most of the

Ninth Circuit Authority in this area.

Id. at 505.°

Each one of the Ninth Circuit decisions cited by Peti-

tioners fit squarely within the Cann court’s analysis.

Three of the cases cited by Petitioners hold that estoppel

cannot mandate payment in direct contradiction of the

plan’s express terms.° Unlike Kane, no interpretation of

ambiguous provisicns was involved in those three cases.

Two cited cases make no mention or reference to ERISA

and are therefore similarly not applicable to the issues

raised in this action.” Another case holds only that no

state common law cause of action was available under

ERISA.*® All but one of the cases® apparently involved

collectively bargained pension plans.” In short, Ninth

Circuit authority does not conflict with Kane.

5 See also, Oates v. Teamster Affiliates Pension Plan, 482 F. Supp.

481, 487-88 (D.D.C. 1979).

® Hansen v. Western Greyhound Retirement Plan, 859 F.2d 779,

781, n.l (9th Cir. 1988); Davidian v. Southern California Meat

Cutters Union and Food Employees Ben. Fund, 859 F.2d 134, 136,

n.3 (9th Cir. 1988); Aitken v. IP & GCU-Employer Retirement

Fund, 604 F.2d 1261, 1265 (9th Cir. 1979). These cases did not

involve estoppel claims based cn express representations as in this

action and thus estoppel was held inapplicable.

7 Thurber v. Western Conference of Teamsters Pension Plan, 542

F.2d 1106 (9th Cir. 1976); Aitken, 604 F.2d 1261.

8 Moore v. Provident Life and Accident Insurance Co., 786 F.2d

922, 928 (9th Cir. 1986).

® Moore, 786 F.2d 922.

10 Although 29 U.S.C.S. § 186(c)(5) and 29 U.S.C.S. § 1102(a) (1)

are similar in that both require benefit plans to be “established and

24

(ii) Other Authority

Other authority cited by Petitioners for the proposition

that Kane conflicts with federal appellate decisions in

other circuits is similarly inapposite.

The Tenth Circuit decision in Straub v. Western Union

Telegraph Co., 851 F.2d 1262 (10th Cir. 1988), does not

conflict with Kane because Straub brought suit against

his employer only and did not assert a claim against the

plan under ERISA or otherwise. Jd. at 1263. Straub is

also inapposite because it involved a modification to a

plan and not an interpretation of an ambiguous plan

provision. Jd. at 1265. Additionally, Straub involved a

pension plan and the alleged liability was premised on

an omission rather than an affirmative representation.

Id. at 1263.

The Second Circuit decision in Moore v. Metropolitan

Life Insurance Co., 856 F.2d 488 (2d Cir. 1988), does

not conflict with Kane because that court held only that,

“Tajn ERISA welfare plan is not subject to amendment

as a result of informal [written] communications be-

tween an employer and plan beneficiaries.” (Emphasis

added.) Jd. at 492. Moreover, no interpretation of an

ambiguous plan provision was rendered. Moore involved

an omission. /d. at 491.

Similarly, The Fifth Circuit decision in Degan v. Ford

Motor Co., 869 F.2d 889 (5th Cir. 1989), is not in con-

flict with Kane because the Degan court held only that

“ERISA precludes oral modifications to benefit plans. . .”

(Emphasis added.) Jd. at 895. Significantly, the Degan

court relied on Straub and Nachwalter, both of which in-

maintained pursuant to a written instrument’, the intent of the

Legislature in drafting them was not the same and does not man-

date similar treatment in all circumstances. Further, pension plans

are more heavily regulated than private medical welfare plans.

Moore v. Metropolitan L.fe Insurance Co., 856 F.2d 488, 491 (2d

Cir. 1988).

— pee ee Pe

25

volved amendments or modifications to the plans involved

and not interpretations of ambiguous plan provisions. Id.

Degan also involved a collectively bargained pension plan.

Id. at 891. The Fifth Circuit’s decision in Cefalu v.

B.F. Goodrich Co., 871 F.2d 1290 (5th Cir. 1989), also

relies on Nachwalter and holds only that, “oral agree-

ments or modifications to a pension plan are contrary to

the express provisions of ERISA.” (Emphasis added.)

Id. at 1292, 1296.

CONCLUSION

The Petition for Writ of Certiorari is untimely and

must be denied. Further, the decision of the Circuit

Court of Appeals does not conflict with any decisions of

this Court or of other federal appeals courts. The deci-

sion of the Circuit Court does no violence to exclusive

federal regulation of employee benefit plans and does not

undermine the integrity of the Plan. Petitioners could

easily have drafted the Medical Plan more precisely and

are free to amend it to eliminate ambiguity.

Respectfully submitted,

RICHARD H. LEVENSTEIN *

JAMES G. LEECH

BOND, SCHOENECK & KING

Suite 1002, Crocker Plaza

5355 Town Center Road

Boca Raton, Florida 33486

(407) 368-1212

* Counsel of Record Attorneys for Respondent