Fox Valley & Vicinity Construction Workers Pension Fund v. Laurine Brown (Lamar), and Dessie Brown, and All Unknown

RIPPLE, Circuit Judge,

dissenting.

This case presents an important and difficult issue that ought to be resolved precisely by statute and regulation. In the absence of such guidance, my brothers have attempted to fashion a judicial resolution that is in harmony with the statute. While I find myself in respectful disagreement with the approach adopted, I must acknowledge, at the outset, the difficulty of the task.

A.

In my view, the starting point of our analysis must be the mandate of section 1104(a)(1)(D).¹ It requires that a plan be administered in accordance with the documents and the instruments of that plan. In my view, this statutory mandate embodies a strong federal policy that all parties— participant, trustee, and beneficiary — be able to ascertain their rights and liabilities with ease and certainty.² The plan at issue here fulfills that mandate quite explicitly. It provides that the beneficiary of the plan is the person named by the participant “in the last written notice received in the Administrative Office prior to the Participant’s death. It shall be the responsibility of the Participant to notify in writing the Administrative Office of his choice of Beneficiary or any change in Beneficiary.” See R.l at Ex. 1, § 6.4. There is no question that Laurine Brown is the person who, under the terms of the plan, ought to receive the death benefit.

The remaining question — and the difficult one for us — is whether the property settlement agreement signed by both Lau-rine Brown and the participant, James Brown, constitutes a binding waiver of these benefits on the part of Ms. Brown. My brothers note that ERISA does not provide an explicit answer as to what constitutes a binding waiver of benefits by the beneficiary. They also note, correctly, that the issue must be decided as a matter of federal law in order to ensure that the purpose of ERISA is effectuated.

It is at the next point in the analysis that I must depart from my brothers’ approach. While analogous principles of state law can indeed be helpful in filling the gaps of a federal statute, we must exercise extreme caution in employing that methodology. It is important to remember that our mission is not to fulfill the intent of the state legislature whose statute we are borrowing, but to fulfill the congressional command embodied in the language and the structure of the federal statute. Therefore, in fashioning a waiver rule, ERISA’s command that a plan be administered in accordance with the plan’s documents must be taken into account. Only then can we be confident that the federal policy of ensuring that all parties be aware of their rights and obligations is protected adequately. The general maxims of state insurance law upon which the majority relies were not, of course, fashioned with this explicit command of ERISA in mind. Therefore, we must be sure that their application is compatible with this congressional mandate. In my view, that compatibility can be accomplished by acknowledging that these general maxims of insurance law permit the renunciation of benefits only if such a renunciation is permitted by statute. See O’Toole v. Central Laborers’ Pension & Welfare Funds, 12 Ill.App.3d 995, 299 N.E.2d 392, 394 (1973). ERISA requires, in order to effectuate the federal policy of certainty in expectations and ease in administration, that beneficiary changes be made according to the plan’s documents. Here, the documents require that the beneficiary change be made only by notification to the plan. Therefore, absent such notification by the participant, the waiver is not binding on the beneficiary.

B.

Even if we accept the proposition that, despite the lack of conformity with the statutory scheme of ERISA, a beneficiary can be considered to have waived an interest in the plan, there remains a difficult question with respect to the intent of Lau-rine Brown that has not been addressed satisfactorily by either the district court or the majority. The purported “waiver” is contained in a property settlement agreement executed by the parties as part of the dissolution of a marriage. That document was designed to adjust property rights between the parties “growing out of the marital or any other relationship now or previously existing between the parties.” R.1 at Ex. 5. By its own terms, then, the agreement (or “waiver”) does not deal with each party’s choices with respect to the disposition of property after the divorce. Indeed, it is quite plausible to read the document as establishing nothing more than a waiver on the part of Ms. Brown of her right to insist on a QDRO ³ as part of the division of marital property. Indeed, such an interpretation is supported by the affidavit of Ms. Brown. R.16. She alleges that Mr. Brown made clear, both before and after the divorce, that he expected that the benefits would be payable to her. Consequently, despite the division of property at the time of divorce, Ms. Brown had, she maintains, a legitimate expectation that she would receive the benefits. Both she and Mr. Brown were aware that the beneficiary designation had not been changed.⁴ At the very least, then, there is a triable issue of fact as to the intent of Ms. Brown with respect to the “waiver” that cannot be resolved on summary judgment.

Accordingly, I would reverse the judgment of the district court on the ground that the “waiver” was not effective because a change in the designation of beneficiary was never made by the participant. However, even under the approach of my brothers, there remains a triable issue of fact that precludes summary judgment.

1 . Section 1104(a)(1)(D) of the Labor Title states that a plan administrator

shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and—

(D) in accordance with the documents and instruments governing the plan....

29 U.S.C. § 1104(a)(1)(D) (emphasis supplied).

2 . As the House Report accompanying ERISA emphasizes:

Descriptions of plans furnished to employees should be presented in a manner that an average and reasonable worker participant can understand intelligently. It is grossly unfair to hold an employee accountable for acts which disqualify him from benefits, if he had no knowledge of these acts, or if these conditions were stated in a misleading or incomprehensible manner in plan booklets.

H.Rep. No. 93-533, 93d Cong., 2nd Sess., reprinted in 1974 TJ.S.Code Cong. & Ad.News 4639, 4646.

3 . ERISA permits a participant to alienate rights in a plan pursuant to a state-court-ordered domestic relations order that fulfills specific criteria set forth in ERISA. Such a state domestic relations order is called a "qualified domestic relations order” (QDRO). See 29 U.S.C. § 1056(d)(3).

4 . The majority suggests that, if Mr. Brown wanted Ms. Brown to receive the benefits, he should have executed a new beneficiary form after the divorce. However, it must be remembered that Mr. Brown knew there already was a designation that conformed to the plan on file. He was entitled to conclude that, even if Laurine Brown had waived the benefits at the time of divorce; his decision not to change the beneficiary desig- . nation amounted to a redesignation. After all, he had been informed, at the time he made the original designation, that a change could be effected only by his coming to the office and changing the beneficiary.