Windstream Corporation et al v. Da Gragnano et al
OPINION AND ORDER granting pltfs' 179 Motion for Default Judgment and 180 Motion for Summary Judgment. Signed by Judge J. Leon Holmes on 2/26/13. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WINDSTREAM BENEFITS COMMITTEE;
WINDSTREAM SYSTEMS OF THE
MIDWEST, INC.; and VALOR
TELECOMMUNICATIONS OF TEXAS, L.P.,
d/b/a Windstream Communications Southwest
No. 4:09CV00953 JLH
JOHNNY LEE; HOMER A. MEEKINS;
DORENE R. FULLER; DONALD H. REMPE;
DONALD F. ANTHOLZ; CHARLES J. MOORE;
JOSEPH P. WANSOLICH; THOMAS FARRELL
WATTS; and TYRONE M. KIMREY
OPINION AND ORDER
The plaintiffs seek a declaratory judgment stating that they can unilaterally modify or
terminate medical benefits that they provide to retirees, and they have filed a motion for summary
judgment against the sole named defendant who has answered and defended, as well as a motion for
default judgment as to the other named defendants. For reasons that will be explained, the Court
holds that the terms of the plans at issue reserve to the plaintiffs the right unilaterally to modify or
terminate retiree medical benefits.
A court should enter summary judgment if the evidence demonstrates that there is no genuine
dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct.
2505, 2511, 91 L. Ed. 2d 202 (1986). The moving party bears the initial responsibility of
demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the moving party meets this burden,
the nonmoving party must respond by coming forward with specific facts establishing a genuine
dispute for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).
In deciding a motion for summary judgment, a court views the evidence in the light most favorable
to the nonmoving party and draws all reasonable inferences in that party’s favor. PHL Variable Ins.
Co. v. Fulbright McNeill, Inc., 519 F.3d 825, 828 (8th Cir. 2008). A genuine dispute exists only if
the evidence is sufficient to allow a jury to return a verdict for the nonmoving party. Anderson, 477
U.S. at 249, 106 S. Ct. at 2511. When a nonmoving party cannot make a showing sufficient to
establish a necessary element of the case on which that party bears the burden of proof, the moving
party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. at
Windstream Corporation is the plan sponsor of the Windstream Comprehensive Plan of
Group Insurance (“the Windstream Pan”).
Windstream Benefits Committee is the plan
administrator of the Windstream Pan. Valor Telecommunications of Texas, LLC, f/k/a Valor
Telecommunications of Texas, L.P., d/b/a Windstream Communications Southwest is a whollyowned subsidiary of Windstream. Windstream Systems of the Midwest, Inc., is also a whollyowned subsidiary of Windstream.
The Windstream Plan provides for the health and welfare benefits to retirees of Windstream,
as well as Windstream’s subsidiaries and predecessors. The subsidiary entities include Valor and
Windstream Systems of Midwest. The predecessor entities include Alltel Corporation, Aliant
Communications Co., and CT Communications, Inc.
According to the second amended complaint, Windstream has provided health and welfare
benefits under the Windstream Plan to former employees of Valor who participated in the
Windstream Plan (the “Valor Retirees”); former employees of Alltel who retired before a 2006
spinoff, including retirees of various companies acquired by Alltel before a merger with Valor on
July 17, 2006 (the “Legacy Retirees”); former employees of Aliant who retired before Aliant’s
merger with Alltel (the “Aliant Retirees”); and former employees of CT Communications who
retired prior to January 1, 2008 (the “CTC Retirees”).
The only defendant who has appeared and actively defended this action is Johnny Lee, a
former bargaining employee of Valor and a former member of Communication Workers of America,
AFL-CIO (“CWA”).1 Lee retired on March 3, 2006, under the 2005-2008 collective bargaining
agreement between Valor and CWA. Pursuant to a memorandum of agreement that was part of the
2005-2008 collective bargaining agreement, Valor paid 80% of Lee’s medical insurance premium.
On July 1, 2010, Valor unilaterally reduced that contribution to $80 per month.
In addition to Lee, the named defendants are Donald F. Antholz, Dorene R. Fuller, Tyrone
M. Kimrey, Homer Meekins, Charles J. Moore, Donald H. Rempe, Thomas Farrell Watts, and
Joseph P. Wansolich, all of whom are retirees affected by the plan modifications at issue. According
to the second amended complaint, Antholz, Fuller, and Wansolich were non-bargaining employees
of Alltel; Kimrey and Meekins were bargaining employees of Alltel; Rempe and Moore were nonbargaining employees of Aliant; and Watts was a non-bargaining employee of Concord Telephone
Company (CTC).2 Document #176 at 3-5. Each of them was served with summons and complaint.
CWA intervened and filed a cross-complaint alleging that Valor violated three memoranda
of agreement included in three collective bargaining agreements when it unilaterally reduced its
contribution to each retiree’s medical premium. Valor moved to dismiss the cross-complaint, and
the Court granted the motion. CWA’s lawyers also represent Lee.
The plaintiffs have filed a complaint, an amended complaint, and a second amended
complaint, all of which sought to bind a class of defendants, but no motion for class certification was
filed, and no class of defendants has been certified. Consequently, relief is granted only as to the
Antholz, Fuller, Kimrey, Meekins, Moore, Rempe, and Watts failed to answer or otherwise defend.
Wansolich filed a pro se answer to the first amended complaint and stated that he did not plan to
incur additional personal expenses to defend the matter. Document #27 at 3. Since then, Wansolich
has not participated in this action, and he has not responded to the motion for default judgment or
the motion for summary judgment. Thus, each named defendant other than Lee is in default. Fed.
R. Civ. P. 55(a); Canal Ins. Co. v. Ashmore, 61 F.3d 15 (8th Cir. 1995).
The plan documents include the Windstream Comprehensive Plan of Group Insurance,
Document #181-2; the Valor Telecommunications Health and Welfare Summary Plan Description,
Document #181-3; the Alltel Benefits Handbook, which includes summary plan descriptions,
Document #181-4; the Alltel Summary Plan Descriptions, Document #181-5-13; Aliant
Communications Co. Plan Summary Plan Description, Document #181-14; CT Communications,
Inc. Health and Welfare Benefit Plan, Document #181-15; March 1, 2002, Agreement of
Recognition, Bargaining Procedure and Operating Contract between Valor and CWA, Document
#181-16; March 1, 2005, Agreement of Recognition, Bargaining Procedure and Operating Contract
Between Valor and CWA, Document #181-17; and Agreement Between Valor and CWA dated
February 29, 2008, Document #181-18.
The amendments at issue make the following changes3:
Effective July 1, 2010, pre-65 Legacy Retirees, all Valor Retirees and all
CTC Retirees, were no longer be eligible to participate in the PPO Plan.
This description of the amendments is taken from the plaintiffs’ statement of undisputed
facts, Document #181, which has not been controverted, so all of the facts stated therein are deemed
admitted pursuant to Local Rule 56.1(c).
Instead, they became eligible to participate in the Windstream Retiree
Medical PPO Plan, currently administered by United Healthcare (“UHC”).
[Footnote 3: Pre-65 Aliant Retirees became eligible to participate in the
Windstream Retiree Medical PPO Plan on January 1, 2009.]
Effective July 1, 2010, pre-65 Legacy Retirees, all Valor Retirees and all
CTC Retirees who received a Windstream medical insurance subsidy began
receiving a subsidy of $80 per month, not to exceed the cost of the medical
Effective July 1, 2010, all spousal subsidies were discontinued.
Effective July 1, 2010, Windstream no longer offered company-sponsored
medical and prescription drug coverage insurance to post-65 Legacy
Retirees, Valor Retirees and CTC Retirees. These retirees instead have the
option to select individual insurance coverage through UHC Medicare
Effective July 1, 2010, post-65 Legacy Retirees and Valor Retirees who
received a Windstream medical insurance subsidy, began receiving a subsidy
of $17 per month, not to exceed the cost of the medical plan premium to be
applied to offset the cost of UHC plans.
Effective July 1, 2010, all spousal subsidies were discontinued.
Effective July 1, 2010, Windstream terminated the HRA Plan. Effective
July 1, 2010, post-65 CTC Retirees who participated in the HRA Plan began
receiving a subsidy of $17 per month, not to exceed the cost of the medical
plan premium to be applied to offset the cost of UHC plans. Effective
January 1, 2014, all medical subsidies will be eliminated for certain Alliant
and CTC retirees.
Effective June 30, 2010, Windstream’s dental subsidy payment to the Legacy
Retirees was terminated.
Effective December 31, 2009, Windstream’s COBRA subsidy payment to the
surviving spouses of the Aliant Retirees was terminated.
Effective December 31, 2009, Windstream’s Medicare Part B reimbursement
to the Aliant Retirees was terminated.
Effective June 30, 2010, Windstream’s dental subsidy payment to the Aliant
Retirees and their dependents was terminated.
Effective January 1, 2014, Windstream’s premium medical subsidy payment
for current and future Aliant Retirees and their dependents will be terminated
(subject to exceptions for certain retirees who will continue to receive
Effective January 1, 2014, Windstream’s premium medical subsidy payment
for current and future CTC Retirees and their dependents will be terminated
(subject to exceptions for certain retirees who will continue to receive
See Documents #181-19, #181-20, and #181-21.
In December of 2009, Windstream sent a letter to all Valor retirees, certain Legacy retirees,
and CTC retirees, providing notice of the amendments.
See Document #181-22.
December of 2009, the plaintiffs sent a similar letter to the Aliant retirees, providing notice of the
amendments. See Document #181-23. On or about June 29, 2012, the plaintiffs sent a letter to
affected retirees providing notice of the amendment dated June 27, 2012. See Document #181-24.
Thus, Windstream has given timely notice of the amendments to the affected retirees. See
Document #181 at 12. Lee and other defendants objected to Windstream’s right to modify, amend,
or terminate the retiree medical benefits. See Document #181-25.
As a threshold issue, Lee argues that the Court is without jurisdiction because the plaintiffs
lack standing to bring an action under ERISA.
Civil actions to enforce ERISA are authorized by 29 U.S.C. § 1132. In pertinent part, that
statute provides that a civil action may be brought by a participant or beneficiary to recover benefits
due under the terms of the plan, to enforce rights under the plan, or to clarify rights to future benefits
under the terms of the plan. 29 U.S.C. § 1132(a)(1)(B). The statute also authorizes an action by a
participant, beneficiary, or fiduciary to obtain an injunction or other equitable relief with respect to
an act or practice that violates a provision of this statute or the terms of the plan. 29 U.S.C.
Lee argues that the plaintiffs lack standing because they are not plan participants or
beneficiaries, nor do they bring this action as fiduciaries to seek equitable relief with respect to any
act or practice that violates the statute or the plan. Lee further argues that this action is not
authorized by the Declaratory Judgment Act, 28 U.S.C. § 2201 and § 2202, because the Declaratory
Judgment Act is procedural in nature, i.e., it enlarges the range of remedies available in federal
courts but does not extend their jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667,
671-72, 70 S. Ct. 876, 879, 94 L. Ed. 1194 (1950); see also NewPage Wis. Syst. Inc. v. United Steel
Workers Int’l Union, 651 F.3d 775, 776-77 (7th Cir. 2011).
Nevertheless, “[f]ederal courts have regularly taken original jurisdiction over declaratory
judgment suits in which, if the declaratory judgment defendant brought a coercive action to enforce
its rights, that suit would necessarily present a federal question.” Franchise Tax Bd. of Cal. v.
Construction Laborers Vacation Trust, 463 U.S. 1, 19, 103 S. Ct. 2841, 2851, 77 L. Ed. 2d 420
(1983). That principle has been held to mean that a district court has jurisdiction over an action
brought by an insurer seeking a declaratory judgment action against an ERISA plan beneficiary who
could have brought a claim against the insurer under 29 U.S.C. § 1132(a) to obtain benefits.
Transamerica Occ. Life Ins. Co. v. Digregorio, 811 F.2d 1249, 1253 (9th Cir. 1987); see also
Reynolds v. Stahr, 758 F. Supp. 1276, 1281 (W.D. Wis. 1991) (holding that the fiduciary and
sponsor of an ERISA plan had standing to bring a declaratory judgment action against beneficiaries
who had the right to assert claims). Following Transamerica and Reynolds, the Eighth Circuit has
held that a district court has jurisdiction over a declaratory judgment action brought by an insurance
company seeking an interpretation of an ERISA plan. Prudential Ins. Co. of Am. v. Doe, 76 F.3d
206, 210 (8th Cir. 1996); see also Maytag Corp. v. Int’l Union, United Auto., Aerospace and Agric.
Implement Workers of Am., No. 4:08CV00291-JEG, 2009 WL 350649, at *4 (S.D. Iowa Feb. 11,
2009) (“Federal courts have jurisdiction over actions for declaratory judgment in cases where they
would have jurisdiction over that same case if it were in the form of a coercive action brought by
the declaratory judgment defendant.”); Rexam, Inc. v. United Steelworkers of Am., AFL-CIO-CLC,
No. CIV03-2998 ADM/AJB, 2003 WL 22477858, at *2 (D. Minn. Oct. 30, 2003) (following
Prudential and Transamerica in holding that an employer who was a plan sponsor could bring an
action for declaratory judgment where the defendants could have brought a coercive action under
Here, the defendants could bring a coercive action under 29 U.S.C. § 1132(a) to seek benefits
under the ERISA plan and could argue that the plan amendments were invalid and unenforceable.
Therefore, the plaintiffs have standing to bring an action under the Declaratory Judgment Act to
determine whether the plan amendments are valid and enforceable, and this Court has jurisdiction
over the action.
On the merits, Lee contends that the plaintiffs did not and do not have the right unilaterally
to modify retiree medical plans because the benefits granted under those plans have vested. “A
‘vested right’ is commonly defined as a ‘right that so completely and definitely belongs to a person
that it cannot be impaired or taken away without that person’s consent.’” Halbach v. Great-West
Life & Annuity Ins. Co., 561 F.3d 872, 877 (8th Cir. 2009) (quoting Black’s Law Dictionary 1349
(8th ed. 2004)).
“While ERISA mandates vested pension benefits, Congress did not mandate vesting for
employee welfare benefit plans, like the health care plan[s] at issue here.” Id. “‘Therefore, an
employer may unilaterally modify or terminate medical benefits at any time absent the employer’s
contractual agreement to the contrary.’” Id. (quoting Jensen v. SIPCO, Inc., 38 F.3d 945, 949 (8th
Cir. 1994)). “It is possible for welfare benefits to vest, however, if a promise to provide vested
benefits is incorporated in some fashion into the formal written ERISA plan.” Id. (citing Hughes
v. 3M Retiree Med. Plan, 281 F.3d 786, 790 (8th Cir. 2002)).
Lee contends that the memoranda of agreement relating to retiree medical benefits, which
were part of the 2002, 2005, and 2008 collective bargaining agreements between Valor and CWA,
created vested rights for Valor employees who retired during the term of one of those memoranda
of agreement. The 2005 memorandum of agreement, which was in effect when Lee retired, states
that Valor and CWA “agree to provide retiree medical benefits for eligible employees who retire
between March 1, 2005 and February 28, 2008.” Document #181-17 at 139. The 2002 and 2008
memoranda of agreement contain similar language. See Document #181-16 at 148; Document #18118 at 119. The second paragraph of all three memoranda of agreement provides:
In order to receive Retiree Medical Benefits, the retiree must pay a percentage/
amount of the Retiree Medical premium (“Retiree Contribution Percentage/
Amount”). Similarly, the Company will pay a percentage/amount of the premium
(“Company Contribution Percentage/Amount”), subject to Section 3 below. During
the term of this Memorandum of Agreement, the Company and retiree Contribution
Percentages/Amount will be based on the following contribution schedule:
Years of Accredited
Service at Retirement
Less than 10
10 through 14
15 through 19
20 through 24
25 through 29
30 and over
According to Lee, the premium cost allocation stated in this paragraph is a vested right and as such
cannot be modified by the company.
Whether medical benefits are vested is a matter of contract, so the Court must begin its
inquiry with the written plan documents. Halbach, 561 F.3d at 877. In interpreting the provisions
of the plan documents, the Court gives words their common and ordinary meaning as a reasonable
person would understand them. Id. (citing Barker v. Ceridian Corp., 122 F.3d 628, 632 (8th Cir.
1997)). Extrinsic evidence is only admissible to assist the Court in interpreting ambiguity in an
agreement. Id. Finally, the burden of proof rests on the party trying to establish that the employer
intended the benefits to vest. Id. (citing Hutchins v. Champion Int’l Corp., 110 F.3d 1341, 1345 (8th
As noted, the first two sentences of the second paragraph in each memorandum state that the
retiree must pay a percentage of the medical premium and that Valor will pay a percentage of the
premium; and the final sentence states the percentages that serve as the basis of Valor and the
retiree’s contribution percentages during the term of each memorandum. Considered alone, this
paragraph does not establish that the parties intended that the contribution percentages paid would
be permanently vested as a contractual right. The phrase “[d]uring the term of this Memorandum
Agreement” indicates that the stated premium contribution percentages in that memorandum would
last only until the memorandum expired, which is inconsistent with the notion that the parties
intended that the premium contribution allocation would be permanent.4 See, e.g., Crown Cork &
Seal Co., Inc. v. Int’l Ass’n of Machinists & Aerospace Workers, 501 F.3d 912, 917-18 (8th Cir.
2007) (“A ‘clause expressly limiting the duration of the retirement health benefits . . . to the duration
of the Master Agreement . . . [is] inconsistent with an intent to vest health benefits for life.’”)
(quoting John Morrell & Co. v. United Food & Commercial Workers Int’l Union, 37 F.3d 1302,
1307 (8th Cir. 1994)); Anderson v. Alpha Portland Indus., Inc., 836 F.2d 1512, 1519 (8th Cir. 1988).
At most, the language of the second paragraph may indicate an intent to vest the premium
contribution allocation for the terms of the respective collective bargaining agreements and
Moreover, the sixth paragraph of each memorandum of agreement grants Valor broad
powers over the benefits at issue here:
The level and administration of the Retiree Medical Benefits; amount or cost of
premiums, premium pricing mechanisms; the attainment of the Maximum Company
Contribution Amount; selection of the claims administrator, alternate health carrier
or insurance carrier; eligibility for the benefits; all terms and conditions related
In addition, the termination clause in the eighth paragraph of the 2005 memorandum of
This Memorandum of Agreement is effective on March 1, 2005, and shall
expire on February 28, 2008. The parties specifically agree that the terms
and conditions set forth in this Memorandum of Agreement, relating to
retiree medical health benefits shall terminate on February 28, 2008, and
shall not survive the expiration of this Memorandum of Agreement unless
agreed to by the parties in writing.
Document #181-17 at 141.
Both the 2002 and 2005 memoranda of agreement expired before Valor modified its
premium contributions. The 2008 memorandum expired on February 28, 2011, before Valor
modified its premium contributions on July 1, 2010. The 2008 memorandum of agreement,
however, reserved to Valor the right to modify or rescind the funding of the retiree health plan, after
notice to CWA, before the term of the memorandum expired. Document #181-18 at 121.
hereto, and the resolution of any disputes involving the terms, conditions,
interpretation, administration, or benefits payable shall rest with the Company and
shall not be subject to the grievance or arbitration procedure set forth in the
Collective Bargaining Agreement.
Document #181-16 at 149; Document #181-17 at 140-41; Document #181-18 at 118-19. A blanket
reservation of control over certain benefits is fatal to any argument that those benefits are vested.
Crown Cork & Seal, 501 F.3d at 918. Generally, “an unambiguous reservation-of-rights provision
is sufficient without more to defeat a claim that retirement welfare plan benefits are vested.” Id.
(quoting Stearns v. NCR Corp., 297 F.3d 706, 712 (8th Cir. 2002)).
This broad, unambiguous reservation of control over premium contributions and all other
terms and conditions of retiree medical benefits, in conjunction with the contribution percentages’
expressly limited duration in the second paragraph of each memorandum of agreement, distinguishes
the instant action from those wherein the Eighth Circuit found reservation-of-rights clauses to be
ambiguous. For example, in Halbach the Eighth Circuit held that a reservations-of-rights clause was
ambiguous where it contained the qualification “provided, however, that no such modification shall
divest a Participant of benefits under the Plan to which he has become entitled prior to the effective
date of the amendment.” Halbach, 561 F.3d at 880. Similarly, the Eighth Circuit has found
reservation-of-rights clauses ambiguous where “it was not clear whether the right to change or
terminate benefits only applied to those participants covered by the plan but not yet retired or
whether it also included already retired pensioners.” Id. at 879 (citing Jensen, 38 F.3d at 950;6
The clause contained the following qualifications, “provided, however, that no such
alteration, amendment or annulment shall permit any part of the Trust Fund, either corpus or income,
to be used for or to be diverted to purposes other than for the exclusive benefit of the Employees or
Participants or their beneficiaries” and “Unless otherwise expressly provided therein, amendments
shall not be applicable to persons who are receiving pensions hereunder prior to the effective date
of such amendment.” Jenson, 38 F.3d at 948-49.
Barker v. Ceridian Corp., 122 F.3d 628, 636 (8th Cir. 1997)).7 In contrast, paragraph 6 in the
memoranda of agreement at issue here includes no such qualifications or limits; it unambiguously
grants to Valor complete control over the “amount or cost of premiums; premium pricing
mechanisms; the Maximum Company Contribution Amount; . . . [and] all terms and conditions
related hereto.” Document #181-17 at 140-41.
Moreover, all of the plans at issue reserve to the employers the right to modify or terminate
the plan benefits at any time. The Windstream Plan provides:
9.01 Amendments. The Board reserves the right to amend this Plan in whole or in
part at any time and for any reason. The Board has granted amendment authority to
the Windstream Benefits Committee or its delegate.
10.01 Right to Terminate. In accordance with the procedures set forth in this Article,
the Board may terminate this plan at any time.8
Document #181-2 at 14. The Valor Retiree Health and Welfare Summary Plan Description states
in its preface, “Although Valor Telecommunications expects and intends to continue the Valor
Telecommunications Plan indefinitely, it reserves the right to terminate, amend, or replace the Valor
Telecommunications Plan, in whole or in part, at any time and for any reason.” Document #181-3
at 7.9 Similarly, the Summary Plan Description of the Aliant Communications Healthcare Program
The clause was qualified by the provision, “If the group Long-Term Disability Plan
terminates, and if on the date of such termination you are totally disabled, your Long-Term
Disability benefits and your claims for such benefits will continue as long as you remain totally
disabled as defined by the plan.” Barker, 122 F.3d at 636.
The 2008 memorandum of agreement incorporates by reference the Windstream Medical
Plan, which is one of the plans within the Windstream Plan.
This plan description is incorporated by reference in the 2002 and 2005 memoranda of
states: “The Company reserves the right to modify, suspend, or terminate these benefits.” Document
#181-14 at 13. According to paragraph 25 of the plaintiffs’ statement of undisputed facts:
The Alltel Plan provided: “The Board reserves the right to amend this Plan in whole
or in part at any time and for any reason. [. . .], the Board may terminate this Plan at
any time”. Exhibit 4, a true and correct copy of the Alltel Plan, at §§ 9.01, 10.01.
The Summary Plan Descriptions for the Alltel Plan provided: “As with all provisions
of the Plan, the Company expressly reserves the right to amend, modify, terminate,
or partially terminate the Plan with respect to retiree and dependent coverage at any
time.” Exhibit 5, true and correct copies of the numerous Alltel Summary Plan
Descriptions; Boyd Aff. at ¶ 18.
Document #181 at 8.10 Several hundred pages of summary plan descriptions from the Alltel plan
are included in the record, and throughout the various provisions of the plan, Alltel reiterated that
it reserved the right to terminate the plan at any time.11 For example, the PPO Plan Summary Plan
Description states, “As with all provisions of the Plan, the Company expressly reserves the right to
amend, modify, terminate or partially terminate the Plan with respect to retiree and dependent
coverage at any time.” Document #181-8 at 86. Finally, the CTC summary plan description states,
in bold letters, “The Company reserves the right to add to, change or discontinue any of the benefits
described.” Document #181-15 at 5.
A blanket reservation of control over benefits is fatal to any argument that those benefits are
vested. Crown Cork & Seal, 501 F.3d at 918. Generally, “an unambiguous reservation-of-rights
provision is sufficient without more to defeat a claim that retirement welfare plan benefits are
The Court did not find in the documents filed in support of the motion for summary
judgment the language attributed by this paragraph to the Alltel plan. Nevertheless, the statement
stands uncontroverted. See Local Rule 56.1(c).
Document #181-4 at 55, 82, 88, 104, 110, 115, 119, 130, 141, 148; Document #181-5 at
8, 15, 23, 31, 45, 57, 71, 114; Document #181-6 at 35, 68; Document #181-7 at 18, 50, 84;
Document #181-8 at 25, 49, 74; Document #181-9 at 30; Document #181-10 at 4, 43, 62, 83;
Document #181-11 at 15, 29, 42, 71; Document #181-12 at 33, 65; Document #181-13 at 4, 50.
vested.” Id. (quoting Stearns v. NCR Corp., 297 F.3d 706, 712 (8th Cir. 2002)). Here, the relevant
documents unambiguously reserve to the plaintiffs complete control over the amount and cost of
premiums, premium pricing mechanisms, the maximum company contribution amount, and all terms
and conditions related thereto, including the power to modify or terminate retiree medical benefits.
Such provisions can only be overcome by “an affirmative indication of vesting” in the plan
documents. Crown Cork & Seal, 501 F.3d at 918. See also Am. Fed. of State, County, and Mun.
Employees v. City of Benton, 513 F.3d 874, 883 (8th Cir. 2008); Hughes v. 3M Retiree Med. Plan,
281 F.3d at 792-93 (reservation of rights provision in plan “devoid of vesting language” defeats
vesting claim); United Paperworkers Int’l Union v. Jefferson Smurfit Corp., 961 F.2d 1384, 1385
(8th Cir. 1992) (unambiguous reservation of rights clause and “absolutely nothing in the plan to
contradict or cloud [its] plain and obvious meaning” defeats vesting claim); Anderson, 836 F.2d at
1519 (plan provision that retirement health benefits “may now or hereinafter be amended, modified
or supplemented in collective bargaining” inconsistent with vesting).
“When interpreting ERISA plan documents, the Supreme Court has referred us to . . . the law
of trusts[.]” Halbach, 561 F.3d at 877. “A power to revoke the trust includes the power to modify
the terms of the trust, and the power to revoke only a portion of the trust includes the power to
modify that portion.” Restatement (Third) of Trusts § 63 cmt. g (2003). Here, the plan documents
reserve to the employers the right unilaterally to rescind all retiree medical benefits, which means
that the plaintiffs have the right unilaterally to modify all retiree medical benefits.
Even so, Lee argues that the provisions in the plan documents reserving to the company the
right to terminate the plans do not necessarily mean that retiree medical benefits do not vest. For
that argument, Lee cites Bender v. Newell Window Furnishings, Inc., 725 F. Supp. 2d 642, 658-59
(W.D. Mich. 2010), aff’d, 681 F.3d 253, 267 (6th Cir. 2012). Bender followed United Auto Workers
v. Yard-Man, Inc., 716 F.2d 1476, 1479 (6th Cir. 1983), which held that retiree benefits were “status
benefits that carry with them an inference that the parties intended the benefits to continue so long
as the beneficiary remained a retiree.” Id. at 1482. The Eighth Circuit has specifically rejected
Yard-Man. See Anderson, 836 F.2d at 1516-17. Decisions of the Eighth Circuit, not the Sixth
Circuit, bind this Court.
Lee also presents an argument based on the course of conduct between the parties.
Specifically, Lee notes that Valor is a successor to GTE Southwest, and GTE Southwest’s
agreements in the 1990s provided for continuation of medical benefits to earlier retirees, whereas
Valor’s agreements did not, and he points out that Valor in fact continued medical benefits to prior
retirees despite the absence of language in subsequent agreements continuing those benefits. The
argument fails because the Court may not rely on extrinsic evidence inasmuch as the plan documents
are not ambiguous. Maytag Corp. v. United Auto Workers, 687 F.3d 1076, 1084, 1086 (8th Cir.
2012) (holding that extrinsic evidence should not be considered where the plan document was not
ambiguous); Hughes, 281 F.3d at 793 (“Since this court finds the ERISA document language
unambiguous, we examine no extrinsic evidence.”); Howe v. Varity Corp., 896 F.2d 1107, 1110 (8th
Cir. 1990) (“As a general rule . . . extrinsic evidence may not be relied upon where the documents
are unambiguous on their face.”); see also Nat’l Tax Inst., Inc. v. Topnotch at Stowe Resort & Spa,
388 F.3d 15, 19-20 (1st Cir. 2004) (“The term ‘extrinsic evidence’ is imprecise but includes proof
of negotiations between the parties, the post-contract conduct, and general trade practice.”).
Because the plan documents are unambiguous, the extrinsic evidence presented by Lee will not be
Lee cites John Morrell & Co. v. Local Union 304A of the United Food & Commercial
Workers, AFL-CIO, 913 F.2d 544, 551 (8th Cir. 1990), for the proposition that extrinsic evidence
can be admitted to demonstrate that an ambiguity exists. Lee’s reliance on John Morrell is
misplaced. In John Morrell, the Court said that extrinsic evidence may not be considered to
contradict the intent of the parties as expressed in the written agreement. Id. Here as noted, the
relevant provisions unambiguously reserved to Valor the right unilaterally to change the premium
cost allocation. Lee’s argument essentially is that extrinsic evidence can be introduced to show that
Valor did not reserve the right unilaterally to change the premium cost allocation. Adopting Lee’s
argument would permit extrinsic evidence to contradict the parties’ intent expressed in the written
Even if the proffered extrinsic evidence were considered on the issue of whether an
ambiguity exists, that evidence would not alter the outcome. According to John Morrell:
To determine whether there is an ambiguity, we must examine the relevant extrinsic
evidence and decide whether the contractual language is reasonably susceptible of
the meaning proposed by the party asserting the ambiguity.
Id. Although Valor reserved the right to amend, modify, or terminate the plan, according to Lee it
did not reserve the right to adjust the allocation of the premium costs. Thus, Lee argues that the
allocation of the premium costs could never be changed even though Valor could terminate the plan
at any time. The plan documents could not reasonably be interpreted to mean what Lee contends
they mean, even if extrinsic evidence were considered. Again, ERISA plan documents are construed
according to the law of trusts, and the power to revoke a trust includes the power to modify it.
Halbach, 561 F.3d at 877; Restatement (Third) of Trusts § 63 cmt. g (2003).
None of the extrinsic evidence tends to show an ambiguity in any of the relevant terms of
the plan documents. None of the extrinsic evidence could show that the premium cost allocation
was intended to survive the expiration of the memorandum of agreement in the face of express
provisions within each memoranda limiting the duration of the cost allocation to the term of the
memorandum of agreement. None of the extrinsic evidence tends to show that there is some
ambiguity in the provision stating that “all terms and conditions” relating to the level and
administration of retiree medical benefits, the amount or cost of premiums, or premium pricing
mechanisms, would rest solely with the company. Moreover, as noted, the right to terminate the
plan includes the right to modify it. None of the extrinsic evidence tends to show that there is any
ambiguity in the documents that reserve the right on the part of the company to amend, modify, or
terminate the plan at any time.
Lee cites Local Union No. 150-A, United Food & Commercial Workers International Union
v. Dubuque Packing Co., 756 F.2d 66 (8th Cir. 1985), for the proposition that language in an
agreement obliging an employer to provide retiree medical benefits without reference to prior
agreements creates an ongoing, vested right to medical benefits. In Dubuque Packing, as here, the
company and the union had a series of three-year agreements that included provisions relating to
retiree benefits. The first two agreements specifically reaffirmed the medical benefits of past
retirees, but the third one did not address the issue. Id. at 69. According to Lee, Dubuque Packing
held that an ambiguity justifying resort to extrinsic evidence is created when a company agrees that
medical benefits of retirees would be continued, eliminates the provision providing for continued
benefits from a subsequent agreement, and nevertheless continues to make payments.
Dubuque Packing is not on point. In Dubuque Packing, the issue was whether medical
benefits of retirees had vested, and the relevant documents were ambiguous on that point. Thus, the
court looked to the contract language and course of conduct to determine whether medical benefits
of retirees had vested. The court found, “there are many indications in the agreements and course
of dealing that the parties intended the right to benefits would vest upon retirement.” Id. at 70.
Here, there are no indications in the agreements that the right to benefits would vest at retirement;
if there were, the agreements would be ambiguous, and it would be appropriate to consider extrinsic
The plan documents unambiguously reserve to the company the right to modify or terminate
retiree medical benefits at any time, so the plan amendments described above are legally valid. The
plaintiffs’ motions for summary judgment and default judgment are granted. Documents #179 and
IT IS SO ORDERED this 26th day of February, 2013.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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