Carroll v. Blue Cross ( 1994 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

          No. 94-1336

                                ANNA CARROLL, ET AL.,
                               Plaintiffs - Appellees,

                                          v.

                       BLUE CROSS/BLUE SHIELD OF MASSACHUSETTS,
                                Defendant - Appellant.

                                 ____________________

                                     ERRATA SHEET

               The opinion of this  court issued on September 2,  1994, not
          for publication, is amended as follows:

               The  cover sheet should read:   "Lisa M.  Fleming, with whom
                                                ________________
          Laura Panos, was on brief for appellant."  The names of the other
          ___________
          attorneys listed on brief for appellant should be deleted.








































                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT




                                 ____________________

          No. 94-1336

                                ANNA CARROLL, ET AL.,

                               Plaintiffs - Appellees,

                                          v.

                       BLUE CROSS/BLUE SHIELD OF MASSACHUSETTS,

                                Defendant - Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                            Selya and Cyr, Circuit Judges,
                                           ______________

                             and Zobel,* District Judge.
                                         ______________

                                _____________________

               Lisa M. Fleming,  with whom  Laura Panos were  on brief  for
               _______________              ___________
          appellant.
               Stephen  M. Perry,  with  whom Thomas  J.  Walsh, Robert  M.
               _________________              _________________  __________
          Mendillo and Casner & Edwards were on brief for appellees.
          ________     ________________



                                 ____________________

                                  September 2, 1994
                                 ____________________




                              
          ____________________

          *  Of the District of Massachusetts, sitting by designation.














                    Per  Curiam.    Appellant  Blue Cross  Blue  Shield  of
                    ___________

          Massachusetts, Inc.  (the "Company")  in 1991 had  promulgated an

          Organizational  Change  Policy (the  "Policy") pursuant  to which

          employees were to receive severance benefits when their positions

          were  eliminated  under  defined  circumstances.   In  1992,  the

          Company  entered  into   an  information  systems   and  services

          outsourcing  agreement  with   Electronic  Data  Services,   Inc.

          ("EDS").   Pursuant to that agreement appellees who had performed

          information services work as Company employees became employed by

          EDS.  They claimed severance benefits under the Policy above.

                    We  agree with the  district court's determination that

          the Company's  Policy excluded  only internal transfers  from its
                                               ________

          severance  benefit  provisions.    Appellant  concedes  that  the

          "transfers" at issue were not  internal transfers.  The  Policy's

          unambiguous language provided for severance benefits to employees

          terminated from their  positions at  the Company,  even if  those

          same   employees   obtained   immediate   employment   elsewhere.

          Accordingly,  appellees are  entitled to  the benefits  for which

          they sued; there was no need  for the court to consider extrinsic

          evidence to ascertain the parties' intent.

                    Appellant's reliance on our recent decision in Allen v.
                                                                   _____

          Adage, Inc., 967 F.2d  695 (1st Cir. 1992), is misplaced.   Allen
          ___________                                                 _____

          held that in  the absence of ambiguity, the  language of the plan

          determines employee  eligibility for benefits.   See id.  at 701;
                                                           ___ ___

          Bellino  v. Schlumberger  Technologies, 944  F.2d 26,  29-30 (1st
          _______     __________________________

          Cir.  1991).  It did not hold that outsourcing agreements such as


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          the  one  at  bar  shall  never  entitle  employees  to severance

          benefits.  See Allen,  967 F.2d at 700-01;  Bellino, 944 F.2d  at
                     ___ _____                        _______

          30.

                    The  Company's remaining arguments concern the district

          court's measure of damages.  The Policy itself defined the proper

          measure  of damages,  thus  such payments  are  not punitive  and

          neither  offset  nor  integration  is required.    Had  appellant

          intended severance payments to be offset by money or benefits its

          former employees  earned elsewhere, it  need merely have  said as

          much in the Policy.

                    Affirmed.
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