Thе plaintiffs failed to receive health benefits under their employer’s ERISA plan because the employer stopped paying into the benefits fund. The district court granted summary judgment to the defendant, American Community Mutual Insurance Company (“American”), on plaintiffs’ Employee Retirement Income Security Act (“ERISA”) claims under 29 U.S.C. § 1109(a) and § 1132(a)(3)(B).
We hold that the plaintiffs have failed to plead a legally cognizable claim under 29 U.S.C. § 1109(a) and have failed to carry their burden of proof on their claim under 29 U.S.C. § 1132(a)(3)(B). Accordingly, we affirm the district court’s order granting summary judgment to the defеndant.
I
The plaintiffs are all former employees of the now-bankrupt Watervliet Paper Company. In March 1989, Watervliet contracted with American for American’s services in administering a health benefit plan. Under this agreement, Watervliet agreed to make *81 an initial depоsit into a claims fund. American then used this fund to pay out claims. Watervliet deducted payments from employees’ paychecks and should have used these deductions to replenish the fund. Watervliet was obligated under the contract to pay American on a monthly basis both for аmounts that American paid from the fund and for American’s service fee for administering the fund.
Under the terms of the agreement, American had no duty to pay claims if Watervliet did not replenish the fund within twenty days of billing. Watervliet, however, was consistently tardy in replenishing' the fund and American sent past due notices to Watervliet in October, November, and December of 1989.
American suspended payment of claims on January 10, 1990. However, when Water-vliet made a partial payment, American resumed payment of claims on January 24, 1990. On February 9, American again suspended pаyment of claims. After several unsuccessful attempts to work out a payment schedule for Watervliet, American informed Watervliet on May 17,1990 that it had terminated the policy for non-payment. The cancellation was effective for all claims filed after December 31, 1989.
American never notified the plaintiffs of the problems it was encountering with Watervliet. In fact, on March 23, 1990, a hospital financial counselor contacted American about coverage for a Watervliet employee/plaihtiff. American verified that the employеe was still covered and gave the counselor the terms of the insurance coverage.
Also, Intracorp, American’s agent for certification of employees for health care, continued to certify Watervliet employees for medical treatments thrоugh March 1990. Intra-corp, however, always sent letters to the employees stating that certification was not a guarantee of payment, and that “such benefits are subject ... to eligibility, coverage, and contract limitations.”
In June 1990, Watervliet laid off the plaintiffs and informed them thаt American would not honor any medical claims that occurred after December 31, 1989. The plaintiffs filed this complaint in July 1991. The district court granted summary judgment to American in August 1992, and the plaintiffs filed this timely appeal.
II
A
This court reviews
de novo
the district court’s grant of defendant’s motion for summary judgment.
Baggs v. Eagle-Picher Indust. Inc.,
The moving party need not support its motion with evidence disproving the non-moving party’s claim, but need only “ ‘show[ ]’ — that is, point[ ] out to the district court — that there is an absence of evidence to support the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477
U.S. 317, 325,
B
As a preliminary matter, we notе that ERISA applies to the health plan in issue.
See International Resources, Inc. v. New York Life Ins. Co.,
The district court, relying on
Coleman v. Nationwide Life Ins. Co.,
In Coleman, the plaintiff was covered under her husband’s health benefit plan. The husband’s employer made an initial, but inadequate, premium payment and never made another monthly payment. The employer ultimately went out of business and the insurance company cancelled the policy as of its effective date. Id. at 56. Meanwhile, thе plaintiff, who was pregnant, incurred hospital expenses. Id. at 57. The plaintiff claimed that Nationwide had breached its fiduciary duty to her by not notifying her that the employer’s non-payment was jeopardizing her health insurance coverage. Id. at 60.
The Fourth Circuit adopted a two-part analysis to determine when an insurance company is a fiduciary. Under the first part, the court examined “the discretionary authority or responsibility of the person with respect to that function.” Id. at 61. Since that review failed to reveal any discretionary function described in the рlan documents, the court next looked to the actions of the insurance company to see if it had voluntarily assumed duties that gave rise to fiduciary obligations. Ibid.
Despite the similarity between the facts in
Coleman
and this case, we analyze the fiduciary issue differently. In
Libbey-Owens-Ford Co. v. Blue Cross and Blue Shield Mut.,
Under the welfarе benefit plan in that case, Libbey-Owens-Ford paid the costs of providing benefits directly to Blue Cross instead of buying insurance from Blue Cross. In return, Blue Cross administered the claims and decided matters of coverage. Blue Cross provided Libbey-Owens-Ford with monthly statements of amounts paid to heаlth care providers, and it charged a monthly fee for administration of the plan. Blue Cross had the sole authority to resolve all disputes regarding coverage. Id. at 1032.
*83 The holding in Libbey-Owens-Ford compels the conclusion that American is a fiduciary in this case. According to the plan documents, Americаn had the sole authority “to determine the benefits to which an insured person may be entitled” and Watervliet expressly granted this discretionary authority to American. American’s authority to grant or deny claims is the crucial factor that makes it a fiduciary within the terms of 29 U.S.C. § 1002(21)(A)(iii).
Even though American is a fiduciary under ERISA, the plaintiffs cannot recover in their individual capacities. In this case, the plaintiffs have alleged that American’s fiduciary duties under 29 U.S.C. § 1109(a) run to them as individuals rather than to the plan as a whole. The plaintiffs, however, have misread this provision.
In
Massachusetts Mut. Life Ins. Co. v. Russell,
In their complaint, the plaintiffs alleged “[t]hat pursuant to 29 USC § 1109, defendant American has breached its responsibilities, obligations and/or duties as a fiduciary and therefore is personally liable to plaintiffs for their damages.” (Emphasis added). Russell and the Sixth Circuit eases cited supra, however, dictate that any recovery under § 1109 will inure to the benefit of the plan as a whole rather than to the participаnts as individuals. Since the plaintiffs’ claim is directly contrary to our precedents, we hold that the plaintiffs cannot recover for their losses under 29 U.S.C. § 1109.
This conclusion is consistent with the holding of
Libbey-Owens-Ford.
In that case, the court found that Libbey-Owens-Ford could bring suit for an accounting of rebates received by Blue Cross. Libbey-Owens-Ford, however, filed for the accounting on behalf of the plan, not on behalf of individual participants, and its claim was based on general principles of trust law, rather than 29 U.S.C. § 1109.
See Libbey-Owens-Ford,
C
The plaintiffs also allege an equitable estoppel claim under 29 U.S.C. § 1132(a)(3)(B). The Sixth Circuit has incorporated the doсtrine of equitable estoppel into the federal common law of contracts, so far as the agreement at issue is before the federal court as an ERISA claim.
Armistead v. Vernitron Corp.,
1) conduct or language amounting to a reprеsentation of material fact;
2) awareness of the true facts by the party to be estopped;
3) an intention on the part of the party to be estopped that the representation be acted on, or conduct toward the party asserting the estoppel such that the latter has a right to believe that the former’s conduct is so intended;
4) unawareness of the true facts by the party asserting the estoppel; and
5) detrimental and justifiable reliance by the party asserting estoppel on the representation.
Ibid.
In this ease, the district court found that, although plaintiffs asserted an equitable es-toppеl claim in their first amended complaint, they never mentioned the argument in their briefs, and at oral argument, the plaintiffs continually characterized their action as a breach of fiduciary duty case. The court concluded that the plaintiffs had “more than *84 failed to shoulder their burdеn of supporting this theory,” and granted summary judgment to American on the 29 U.S.C. § 1132 claim.” 3
The plaintiffs, however, contend that they did not abandon the claim since the district court had before it affidavits that indicated that American had verified coverage and then refused to pay the claim. Plаintiffs argue that “[i]t only takes a small semantic leap from a claim that defendant American’s representation of verification of coverage was unreasonable to a claim that defendant American should be estopped from denying coverage because of those representations.”
Even if this court were willing to make the semantic leap, the district court was correct in granting summary judgment to American. The plaintiffs’ main argument on appeal is that since American and Intracorp made representations to the plаintiffs that they were covered by insurance, American is now bound by those representations. Assuming that the plaintiffs could meet their burden as to the first three Armistead' elements, summary judgment is still appropriate because they cannot meet the last two elements, namely “unawareness of the truе facts by the party asserting the estoppel,” and “detrimental and justifiable reliance.”
American issued a certificate of coverage to the plaintiffs that indicated that American would only pay claims as long as Watervliet’s account was in good standing, and it reserved the right to stop paying claims even though the claims occurred before American informed Watervliet of the effective date of the cancellation. Also, Intracorp was careful to inform the plaintiffs that certification did not guarantee that their claims would be paid. Consequently, the plaintiffs were aware that American could cancel if Watervliet fell into arrears and that Intracorp’s certification procedures did not guarantee that the claims would be paid.
This uneontroverted evidence was before the district court. Since the plaintiffs failed to challenge this evidence, the district court was correct in granting summary judgment to American on the equitable estoppel claim.
The district court’s order granting summary judgment to American is therefore AFFIRMED.
BAILEY BROWN, Senior Circuit Judge, concurs in the result.
Notes
. 29 U.S.C. § 1002(21)(A) provides in pertinent part:
[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.
. 29 U.S.C. § 1109(a) provides in pertinent part:
Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary.
. The plaintiffs brought their equitable estoppel claim under 29 U.S.C. § 1132(a)(3)(B), which provides in pertinent part:
"A civil action may be brought ... (3) by a participant, beneficiary, or fiduciary ... (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.”