Revised November 23, 1998

UNITED STATES COURT OF APPEALS For the Fifth Circuit __________________________________________

No. 98-60224 Summary Calendar _________________________________________

SANDRA F. WALKER

Plaintiff - Appellant,

VERSUS

WAL-MART STORES, INC.

Defendant - Appellee.

__________________________________________

On Appeal from the United States District Court for the Southern District of Mississippi __________________________________________ November 18, 1998

Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges.

PER CURIAM:

I. FACTUAL AND PROCEDURAL BACKGROUND

In January of 1990, Sandra Walker (“Walker”) was employed by

Wal-Mart Stores Inc. and was a member of the Wal-Mart Associates

Group Health Plan (“the Plan”), which provided Walker with

medical and dental benefits. The Plan is governed by the

Employee Retirement Income Security Act (“ERISA”).

Beginning January 18, 1990, through January 25, 1990, Walker

underwent dental treatment by Dr. Van R. Simmons, a dentist in Mississippi. On January 7, 1992, Walker initiated a malpractice

action in state court against Dr. Simmons for dental malpractice.

She alleged that he propped her mouth open excessively, thus

causing her to undergo three inpatient surgeries for repair of

her right and left temporomandibular joints.

Walker’s medical expenses totaled $41,598.59 and were paid

by the Plan. On June 19, 1996, Walker agreed to release Dr.

Simmons of all claims in exchange for a settlement agreement of

$12,500.

On December 13, 1996, Walker instituted a declaratory

judgment action in the Circuit Court of Pike County, Mississippi.

Walker argued that she was entitled to the whole of the

settlement proceeds received in the underlying malpractice

action. On January 21, 1997, the Plan removed the case to

federal court on the basis of federal question jurisdiction.

On March 31, 1998, the United States District Court for the

Southern District of Mississippi granted the Plan’s Motion for

Summary Judgment and ordered the entirety of the $12,500 be paid

to the Plan as reimbursement for its medical expenses. Walker

appealed the lower court’s decision.

II. STANDARD OF REVIEW

In Firestone Tire and Rubber Co. v. Bruch,

, 115

2 (1989), the Supreme Court established that courts must apply a de

novo standard of review in actions brought by ERISA plan

participants who challenge the denial of benefits. However, if

the plan vests the plan administrator with discretionary

authority to make eligibility determinations or construe the

plan’s terms, the appropriate standard of review is for abuse of

discretion.

This Court has held Bruch’s principles applicable not only

to benefit determinations brought by plan participants, but also

to plans’ assertions of purported reimbursement and subrogation

rights. Sunbeam-Oster Company, Inc. Group Benefits Plan for

Salaried and Non-Bargaining Hourly Employees v. Whitehurst,

(5th Cir. 1991). In Whitehurst, we applied a de

novo standard of review because the parties agreed that the

administrator had not been vested with discretionary authority to

interpret the Plan at the time of the plaintiff’s injuries.

Had we found that the administrator had possessed discretionary

authority at the time of the injury, the appropriate standard of

review would have been for abuse of discretion.

Like in Whitehurst, the Plan herein is asserting its

reimbursement and subrogation rights over the plaintiff’s

monetary recoveries from the tortfeasor. In this case, however,

the issue on whether the administrator was vested with

discretionary authority has not been settled and we must look at

3 the Plan’s language to determine if any of its provisions vested

the administrator with such authority. The relevant provision,

for determining this issue, reads as follows:

The PLAN herein expressly gives the ADMINISTRATIVE COMMITTEE discretionary authority to resolve all questions concerning the administration, interpretation or application of the PLAN, including without limitation, discretionary authority to determine eligibility for benefits or to construe the terms of the PLAN in conducting the review of the appeal. . . .

This provision clearly vested the Administrative Committee

with the discretionary authority to interpret the terms of the

Plan, therefore, the proper standard of review in this case is

for abuse of discretion.

III. DISCUSSION

There are two issues presented in this case. First, whether

the Plan’s language unambiguously speaks to this dispute and

sufficiently provides for the distribution of settlement proceeds

of the type paid in this case. Second, whether the plaintiff’s

attorney is entitled to deduct his fees and expenses prior to the

Plan being reimbursed under his own reimbursement contract with

the plaintiff.

Walker’s argument, for right of possession over the

settlement money, is three-fold. First, she argues that the Plan

chose not to participate or finance the lawsuit and should

therefore be barred from recovering any of the settlement money.

4 Second, Walker maintains that the language of the Plan never

contemplated partial recovery by a participant nor did it ever

consider the issue of attorneys’ fees. Third, Walker contends

that there is no proof that the settlement sum paid was a result

of any malpractice by the tortfeasor and therefore the

reimbursement provision does not apply.

The Plan argues that it is entitled to the right of

subrogation and recovery of all amounts paid. The Plan points

out that it expended $41,498.59 for Walker’s medical treatment

and that the plain language of the Plan gives it the right to

recover benefits that it has previously paid to the extent of any

payments resulting from settlement, regardless of how the parties

chose to designate those payments.

The Plan asserts that the relevant provisions are

unambiguous. Walker, however, claims that they are insufficient

for determining the distribution of the settlement proceeds. The

provisions read as follows:

The PLAN shall have the right to reduce benefits otherwise payable by the PLAN or recover benefits previously paid by the PLAN to the extent of any and all of the following: A. Any payments resulting from a judgement or settlement, or other payment or payments, made or to be made by any person or persons considered responsible for the condition giving rise to the medical expense or by their insurers, regardless of whether the payment is designated as payment for such damages including, but no limited [,] to pain and/or suffering, loss of income, medical benefits or any other specified damages; or any other damages made or to be made by any

5 person . . .

Congress expressly intended for ERISA Plans to be “written

in a manner calculated to be understood by the average plan

participant,” and need only be “sufficiently accurate and

comprehensive to reasonably apprise such participants and

beneficiaries of their rights and obligations under the plan.

Title

(a)(1). In light of this statute, we have

previously held that ERISA plans should not be held to the same

standard that an insurance contract purchased in an open market

is held to. Jones v. Georgia Pacific Corp.,

(5th Cir. 1996). Such a contract is purposefully drafted with

greater particularity because courts usually construe plan terms

strictly in favor of the insured. ERISA, on the other hand,

expressly guards against boilerplate language in its plans and we

must therefore interpret ERISA plans’ provisions as they are

likely to be “understood by the average plan participant,”

consistent with ERISA’s statutory drafting requirements.

We hold that the Plan’s language is unambiguous and that the

administrators’ interpretation of the Plan did not constitute an

abuse of discretion. We agree with the district court in holding

that the “any and all” language plainly means the first dollar of

recovery (any) and 100% recovery (all) of the funds received by

the plaintiff in the settlement, up to full amount of the

benefits paid. The Plan’s unambiguous language does not include

6 a provision for reduction of its subrogation lien for payment of

attorneys’ fees or costs. Interpreting the provisions to provide

for attorneys’ fees and expenses would have been wholly improper

by the district court. Furthermore, the fact that the provisions

do not specifically mention attorneys’ fees or set out detailed

distribution procedures, does not constitute silence or ambiguity

on behalf of the Plan. Whitehurst,

. This Court

has firmly held that an ERISA plan should not be penalized for

lack of technical precision or verbosity by labeling the Plan

“silent” or “ambiguous” when it is simply using the direct

language mandated by ERISA.

IV. CONCLUSION

In sum, we conclude that the administrator’s interpretation

of the plan was legally correct and that the language of the

Plan’s subrogation and reimbursement provisions are clear and

unambiguous. Furthermore, in the absence of any expressly

selected alternative standard, the Plan Priority norm vested the

Plan with unconditional reimbursement for the full amount of the

medical benefits paid to Walker. Therefore, her attorneys are

not entitled to deduct their fees or expenses.

We find that there was no abuse of discretion by the

Administrative Committee and AFFIRM the district court’s decision

7 to grant the Plan’s Motion for Summary Judgment.

8