# Opposition Brief — Aetna Life Insurance v. Kane

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 890

## Text

“"Upreme Court, U.S,
rit cz

. AUG 15 1890
No. 90-51 JOSEPH F gang

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a
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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

Eg)
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1795%3A3. Public record. Not legal advice.