UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20958

ROOSEVELT COLLINS,

Plaintiff-Appellee,

v.

SMITH INTERNATIONAL INC., ET AL,

Defendants,

SMITH INTERNATIONAL INC., doing business as Delaware Holding Smith International, Inc.,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (H-97-CV-1515)

October 29, 1999

Before JONES and DENNIS, Circuit Judges, and PRADO*, District Judge.

PER CURIAM:*

The court has carefully considered this appeal in light

of the briefs, oral arguments of counsel, and pertinent portions of

the record. We find no error in any of the trial court rulings

appealed by Smith.

* District Judge of the Western District of Texas, sitting by designation. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 In particular, the court did not err in finding that

Collins had filed his application for long-term disability benefits

in a timely manner, particularly in light of the “reasonably

possible” language of the plan. Additionally, the district court

carefully reviewed the evidence concerning Smith’s claim-handlers’

understanding of when Mr. Collins could have filed his claim, as

well as Mr. Glass’s behavior, and had ample evidence to justify a

finding that Mr. Collins filed his application as soon as

reasonably possible.

Nor did the court abuse its discretion in holding that

the pre-trial order precluded Smith from arguing that Collins was

not a participant or beneficiary under the Plan. District courts

are encouraged to construe their pre-trial orders without fear of

reversal, and appellate courts are hesitant to interfere with the

trial court’s discretion in this area. See Flannery v. Carroll,

(5th Cir. 1982). The district court reached its

decision after it had considered the need to avoid undue surprise

and to sharpen the trial controversy, and this Court is not in a

position to disturb the trial court’s choice.

As for whether the case should be remanded to the plan

administrator, we carefully considered the arguments pertaining to

both Schadler v. Anthem Life Ins. Co.,

(5th Cir.

1998), and Vega v. Nat’l Life Ins. Servs., Inc.,

(5th Cir. 1999), and being mindful of the specific situation in

this case, we find that the trial court was correct in not

remanding the case to the plan administrator. Smith did not

2 seasonably raise its Vega arguments; rather, it attempted to try

the coverage issue at trial. In addition, Smith had sufficient

opportunity in which to examine the application administratively --

sixteen months, in fact. Therefore, this Court declines to remand

the case to the plan administrator for further consideration of the

merits of the application.

For these reasons, the judgment of the district court is

AFFIRMED.

3