Delaney v. Whitney Nat. BankDelaney v. Whitney Nat. Bank
Phelps Dunbar, Harry Rosenberg, M. Nan Alessandra, Jane E. Armstrong, New Orleans, for Defendant-Appellant Whitney National Bank.
Before SCHOTT, C.J., and KLEES, ARMSTRONG, WALTZER and MURRAY, JJ.
Defendant Whitney National Bank appeals the judgment of the civil district court, finding it responsible for larger payments from its retirement plan to Plaintiff Patrick Delaney. Delaney also appeals from that judgment in respect to certain damages he was denied. Upon our review of the record, we reverse in part and affirm.
Plaintiff Patrick Delaney (Delaney) sued Whitney National Bank (Whitney) in the civil district court, claiming that Whitney had failed to pay the full benefits to which Delaney was entitled under his nonqualified retirement plan and an agreement between the two parties entered into upon the cessation of Delaney‘s employment there. The nature of this agreement, and the circumstances of its formation, are a matter of some dispute.
By 1989, after almost 36 years with the bank, Delaney had risen from trainee clerk to Chief Executive Officer. He was earning $500,000.00 per annum, and had no intention of leaving Whitney at any point in the near future. Apparently there were those in the organization who felt differently; Delaney was forced to retire, on rather short notice, on October 31, 1989.
On November 1, 1989, Delaney and Whitney entered into the agreement in question. This agreement not only described Delaney‘s departure as “retirement” but provided for a considerable package of benefits in connection with that retirement. Delaney was to receive: (1) salary for the remainder of 1989; (2) employee benefits, including full benefits under Whitney‘s qualified retirement plan and excess retirement plan; and (3) the sum of $1,187,497.00. The nature of the $1.187 million payment is not explicitly stated within the agreement itself.
The retirement plans referred to in the agreement were arrangements sponsored and administered by Whitney; the two pertinent to this litigation are the qualified retirement plan (Retirement Plan) and a non-qualified retirement plan (Excess Plan.) The Retirement Plan was a qualified employee benefit plan of the type subject to the provisions of the federal Employee Retirement Income Security Act of 1974 (ERISA),
One change in the law regarding retirement benefits had taken place after the adoption of the Excess Plan but before Delaney‘s retirement. In January of 1989, Internal Revenue Code § 401(a)(17) became active in regard to the Retirement Plan. Under § 401(a)(17), compensation taken into account for retirement benefit accrual purposes is capped at $200,000.00. Apparently, during the negotiations surrounding the arrangement, neither party brought up the effect that this new tax code might have on Delaney‘s future benefits.
In October of 1992, Delaney was informed that he could choose to receive his retirement benefits early; he asked for information on how such a choice would affeсt those benefits. Whitney took some time in answering Delaney‘s inquiries; the complexity of the plans themselves and the effect of new amendments and this new tax code appear to have caused some confusion. Whitney initially provided conflicting information as to the amounts Delaney would be receiving from the plan, and at one point retracted the invitation to receive early retirement benefits, telling Delaney that he was no longer eligible for this. Finally, Delaney was allowed to begin receiving those early benefits, albeit with payments lower than he had initially been told. Apparently § 401(a)(17) had diminished the amount of money to which Delaney was entitled under the Retirement Plan, and the Excess Plan did not fully compensate for this. Displeased with the lower amounts, and the manner in which these affairs had been handled by Whitney, Delaney brought suit, seeking damages for breach of the agreement.
Delaney brought suit in district court seeking damages for breach of contract. Whitney twice attempted to remove this case to the United States District Court for the
DEFENDANT‘S ASSIGNMENTS OF ERROR
Whitney first asserts that the trial court erred in overruling the peremptory exception of no cause of action. As defendant is a national banking association, it is governed by the provisions of
We find this interpretation of the statute to be clear and accurate, yet inappliсable to the present case. Delaney‘s suit does not in any way protest the cessation of his employment at Whitney. His claim lies entirely in the enforcement of the agreement entered into upon his resignation. The federal statute cited by Whitney does not provide any shelter from such a claim. As such, we find no merit in this argument.
In its next assignment of error, Whitney argues that the trial court erred in failing to adequately instruct the jury to consider whether or not the Agreement was a settlement between Delaney and Whitney. The bank wanted the jury to consider this issue carefully, as the characterization of the $1.187 million could well depend on this point. Whitney submitted a jury instruction on the issue which the trial court refused to give, using instead a much more abbreviated instruction which Whitney finds inadequate. Since the jury was not sufficiently informed about this key issue, the bank believes their determination that the $1.187 million payment was “compensation” for the purposes of the Retirement Plan should be considered suspect, and that the jury verdict should be set aside to correct this error.
When considering jury instructions the determination of reversible error is made by asking whether the jury was misled to such an extent as to prevent it from doing justice. Dye v. Schwegmann Giant Super Markets, 599 So.2d 412 (La.App. 4 Cir.1992.) Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The adequacy of any jury instruction given by a trial court must be determined in the light of jury instructions as a whole. Id.
The jury‘s finding in this area is at discord with the facts presented; it is probable that more comprehensive instructions would have been helpful. However, based on the record before us, we cannot say that the jury instructions were so incorrect or inadequate as to prevent the jury from reaching a verdict based on the law and the facts, and thus do not constitute manifest error. The instructions taken as a whole were adequate to inform the jury of the questions presented for their consideration. Id. We therefore decline to invalidate the entire verdict on this one issue, which will be discussed in greater detail separately.
Whitney further argues, in its next assignment of error, that the trial court erred in denying Whitney‘s Declinatory Exceptions of Lack of Subject Matter Jurisdiction and Peremptory Exceptions of No Cause of Action. The bank believes the trial court to have been in error in allowing Delaney‘s
State laws that relate to an ERISA plan are preempted; ERISA‘s jurisdiction is exclusive. New Orleans Sheet Metal Worker‘s v. ABC Ins., 599 So.2d 868 (La.App. 4 Cir.1992.) Since several points of Delaney‘s allegations did touch upon the administration and construction of the Retirement Plan, Whitney argues that the trial court had no jurisdiction over the present case.
However, ERISA does not supersede state law absolutely; certain specific areas are exempted. Those exemptions are described in
In its next assignment of еrror, Whitney argues that the trial court erred in allowing parol evidence concerning the excess plan and in admitting testimony regarding amendments to the Retirement Plan after Delaney had left the bank.
Parol evidence is only properly admitted in regard to a document when that document is ambiguous on its face. Kean v. Lemaire, 451 So.2d 151, 153. (La.App. 1 Cir.1984.) Such evidence was admitted in the present case in regard to the terms and intent of the Excess plan and Whitney‘s failure to notify Delaney of the amendments. Whitney alleges that such admission was improper on the grounds that the Excess Plan is clear and unambiguous on its face.
We find it curious that Whitney is defending the Excess Plan as clear and unambiguous when its own accountants were unable to provide consistent interpretations of its effects for Delaney. It appears from the record that the bank itself hаd difficulty determining the precise effect that the various changes in the plans and the law would have on Delaney‘s benefits; the actuarial firm that had served Whitney for years was obliged to provide several different calculations before settling upon the one Whitney finally began applying to Delaney. Furthermore, the Excess Plan states that it will compensate for reductions triggered by § 415 or “any successor provisions thereto.” The term “successor provisions” is not defined within the plan: it could refer only to amendments to § 415 itself, or it could refer to other tax code amendments dealing with the limits on high-income retirement benefits—amendments like § 401(a)(17).
If the terms of a written contract have more than one interpretation or when uncertainty and ambiguity exist as to the provisions of a written agreement, parol evidence is admissible to clarify the ambiguity or to ascertain the intent of the parties.
Whitney also argues that Delaney‘s evidence touched upon the administration of the Retirement Plan, an area governed by ERISA and inappropriate for this forum. Delaney counters this argument by pointing out that he was not, in fact, challenging the administration of the Retirement Plan. He alleged inappropriate administration of the
In the next assignment of error, the bank argues that the trial court erred in denying Whitney‘s motion for summary judgment, both in general and particularly concerning the applicability of § 401(a)(17) to the determination of Delaney‘s benefits. Summary judgment was granted in Whitney‘s favor only on the question of nonpecuniary damages. Whitney feels that there were no genuine issues of material fact in dispute, and thus the trial court was in error.
Whitney condenses Delaney‘s allegations about the shortfall from the Excess Plan into three issues: (1) whether Code § 401(a)(17) applied to the computation of Delaney‘s benefits; (2) whether Delaney was to be compensated for any limits put on his benefits by § 401(a)(17); and (3) whether the $1.187 million should be treated as a settlement or as compensation.
Ultimately, § 401(a)(17) was found applicable by the trial court as a matter of law; therefore, summary judgment would have been appropriate earlier in the proceedings. However, this does not constitute reversible error.
Whitney relies upon several formulas and calculations to support its allegations about the next two issues; however, it is quite clear that the operation of the retirement plans, the reasons behind the amendments to the plans, and the nature of the $1.187 million were all contested and complex issues, inappropriate for resolution at the summary judgment level. Whitney‘s oversimplification of thе issues in brief cannot overcome the weight of substantial evidence on both sides of the conflict. The trial court was entirely correct in refusing summary judgment and conducting a more thorough examination of the issues in dispute.
Whitney next argues, in another assignment of error, that the trial court erred in denying Whitney‘s Motion in Limine seeking to exclude testimony and evidence relating to the administration of the Retirement plan. The bank insists that any evidence regarding the administration of the Retirement plan is completely preempted by ERISA. In its motion, Whitney relied upon ERISA‘s broad preemption clause, set out in
ERISA does govern the administration of funds such as Whitney‘s Retirement Plan. ERISA does not, however, block all information about any plan governed by ERISA from being introduced in a trial on any other grounds. Delaney‘s suit, as previously discussed, was rooted in the application of the Excess Plan; testimony about the Retirement Plan was admitted not for the purposes of attacking the Retirement Plan‘s administration, but to explain how the Excess Plan operated in regard to the Retirement Plan. Therefore, the evidence was properly admitted and Whitney‘s Motion in Limine was correctly denied.
In the next assignment of error, Whitney argues that the trial court erred in denying Whitney‘s motion for directed verdict on the issue of bad faith. In the present case, the trial judge had already made it clear to counsel that he felt that there was no bad faith on Whitney‘s part. He denied the motion for directed verdict and allowed the charge to go to the jury, which returned a verdict finding that Whitney had acted in bad faith. The trial judge then granted Whitney‘s Motion for Judgment Notwithstanding the Verdict on this issue, overturning that finding of bad faith.
A trial judge has much discretion in determining whether or not to grant a motion for a directed verdict. Barnes v. Thames, 578 So.2d 1155, 1162 (La.App. 1 Cir.1991.) A motion for directed verdict is properly granted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the movant‘s opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. Id. As the trial judge in this case went on to grant JNOV in Whitney‘s favor on this issue, granting this directed verdict would have been proper. However, we cannot say that a refusal to grant the directed verdict constitutes reversible error. The trial judge overturned this jury finding, and thus kept Whitney from being held liable for damages for bad faith. The jury was allowed to examine this question, but this in and of itself should not be so cоrrosive to the deliberative process as to undermine the entire result. Although the issue of bad faith might cast some doubt upon Whitney‘s assertions at trial, it does not appear to have been so grossly prejudicial as to warrant an entirely new trial. We therefore decline to dispose of the all the jury‘s findings in this complex case because of the consideration of one issue.
Delaney contests the reversal of the jury‘s verdict in this regard; we will discuss his assignment of error separately.
In Whitney‘s final assignment of error, the bank argues that the trial court erred in denying Whitney‘s motions for JNOV or a new trial. After the jury rendered its verdict, the bank made these motions, which the trial court granted as to the jury‘s finding of bad faith but denied in all other regards.
A refusal to render a JNOV can only be overturned if it is manifestly erroneous. Plummer v. Marriott Corp., 94-2025 (La.App. 4 Cir. 4/26/95), 654 So.2d 843, 846. A denial of a motion for a new trial will be reversed only if there has been an abuse of discretion. Belle Pass Terminal v. Jolin, Inc., 92-1544 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, 493.
Whitney‘s defense of these motions consists, basically, of a reiteration of the case presented at trial; the bank argues again that the claim should have been blocked by ERISA, that Whitney did not in any way breach the agreement with Delaney, and that Delaney had already received the full measure of his retirement benefits. As we have reviewed each of these findings and found only minimal and harmless error, we cannot say that the verdict as finally rendered was clearly contrary to the law and the evidence. Therefore, Whitney‘s motions for JNOV or a new trial were properly denied.
PLAINTIFF‘S ASSIGNMENTS OF ERROR
Delaney asserts that the trial court erred in refusing to increase the monthly damage award to account for inclusion of the original $1,187,497.00 payment made by Whitney to Delaney—ie, to consider it as part of his salary for purposes of determining his retirement benefits. The jury did specifically find that the $1.187 million was to be considered compensation—yet Delaney was awarded $6993.03 per month from the plan, an amount which suggests his damages were calculated without taking the $1.187 million into account. Apparently, the jury calculated his damages without counting the $1.187 million as compensation for the purposes of determining his benefits. According to Delaney‘s calculations, if the $1.187 million is counted in as compensation under the retirement plan, he should be receiving $9,376.30 per month. He therefore considers the jury‘s findings incompatible, and urges this court to amend the amount of his award to
Whitney agrees that the jury‘s findings in this matter are incompatible, but counters his argument by asserting that the jury‘s findings are incorreсt as to the status of the 1.187 million, not in the amount finally bestowed upon Delaney. Whitney continues to argue that the money was given to Delaney as part of a settlement—a relinquishment of all claims against Whitney arising from the abrupt end of his employment there. The agreement between the bank and Delaney is absent of any language that would require Delaney to relinquish any claims; however, this court is not inclined to see this 1.187 million, paid after the last day of Delaney‘s already well-rewarded employment, as compensation for work done. This court therefore reverses the jury‘s finding that this money constituted compensation; the lower sum of money granted to Delaney, $6993.03 per month, is appropriate for the actual salary and compensation he earned while employed by Whitney, and that amount will stand.
In his next assignmеnt of error, Delaney argues that the trial court erred in overturning the jury‘s finding that Whitney intentionally and in bad faith breached the Agreement. The jury reached this conclusion after the presentation of all evidence and due deliberation; a district court‘s authority to overrule a jury‘s findings and grant a JNOV is limited to situations in which the facts point so strongly in favor of a party that the court feels a reasonable jury could not arrive at a contrary verdict. See Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991).
Where two permissible views of the evidence exist, the fact-finder‘s choice between them cannot be manifestly erroneous. Schlesinger v. Herzog, 95-1127 (La. App. 4 Cir. 4/3/96), 672 So.2d 701. Therefore, a jury‘s verdict should not be set aside as long as a fair interpretation of the evidence supports it. See Willis v. Louisiana Power and Light, 524 So.2d 42 (La.App. 4 Cir.1988.) All reasonable inferences from the evidence are to be construed in the light most favorable to the nоn-moving party. Egan v. Hullinghorst Indust., Inc., 537 So.2d 1226 (La.App. 4 Cir.1989.)
Delaney did assert at trial that Whitney acted deliberately to deny him, and only him, full retirement benefits. He did offer proof that he received contradictory information from Whitney at various times; Delaney therefore concludes that bad faith is a permissible inference from the evidence presented, and so this jury finding should not have been overturned.
Whitney defends the trial court‘s action by pointing out that the trial court had already opined, before any jury consideration, that Delaney had shown no proof of bad faith. Delaney made various allegations; however, what he introduced into evidence did not reach the burden of proof of bad faith. A breach of the agreement, in itself, is insufficient. In order to determine bad faith, we must ask whether the party acted “intentionally and maliciously.”
Bad faith genеrally implies actual or constructive fraud or a refusal to fulfill contractual obligations, not an honest mistake as to actual rights or duties. See Adams v. First Nat‘l Bank of Commerce, 93-2346 (La. App. 4 Cir. 9/29/94), 644 So.2d 219, writ denied, 94-3053 (La.2/3/95), 649 So.2d 411.
The evidence submitted at trial does not lend itself to an inference of such deliberate malice. Disagreement and confusion have ruled the interaction between Delaney and Whitney since Delaney‘s resignation, but Delaney has not offered up evidence of fraud. Therefore, the trial court was correct to grant Whitney‘s JNOV overturning the jury finding of bad faith.
In his next two assignments of error, Delaney asserts that the trial court erred in failing to award him nonpecuniary and unforeseeable damages for Whitney‘s breach. Whitney was granted summary judgment on the issue of nonpecuniary damages, and Delaney attacks this judgment; he refers to the deleterious effects of this confliсt on his health and well-being, and asserts that these problems entitle him to an award of such damages.
As for the question of unforeseen damages, Whitney points out that Delaney has failed to preserve this issue for appellatе review. Delaney did not propose a jury instruction on this and did not object to the trial court‘s omission of such an instruction. A party may not assign error to the failure to present a jury instruction unless an objection is made.
Delaney protests that he did, in fact, object to the lack of such an instruction. It appears, however, that the objection Delaney made was over the omission of certain jury instructions for damages for bad faith—not over the failure to instruct the jury on unforeseeable damages. Therefore, this issue has not been preserved for appellate review.
In the next assignment of error, Delaney says the trial court erred in failing to award him attorney‘s fees. He first argues from the position that the jury did find bad faith, and attorney‘s fees are awarded to a plaintiff who has proved an intentional, bаd-faith breach of a contractual obligation.
Delaney next points out that attorney‘s fees have been awarded in past in compensation for violations of the Louisiana Wage Payment Act,
However, this court agrees with Whitney‘s counterargument, namely that “wages,” under the meaning of the Wage Payment Act, should be more narrowly construed to apply only to compensаtion earned during a pay period. These retirement benefits are not within that category. See Boudreaux v. Hamilton Medical Group, Inc., 94-0879 (La.10/17/94), 644 So.2d 619. The cases that Delaney attempts to rely on all actually award such fees for violations that do involve wages—the retirement benefit problems are invariably incidental. We therefore decline to recharacterize Delaney‘s case at this point in the proceedings, and uphold the trial court‘s denial of attorney‘s fees.
In his final assignment of error, Delaney argues that the trial court erred in failing to assess judicial interest from the first day the lower retirement benefits were paid to Delaney. The trial court provided that interest on the unpaid benefits—a sum of $41,958.18—should commence on the day of judicial demand. Delaney asserts that, since
In Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978), the Supreme Court concluded that claims arising from a contract bear judicial interest from the date of judicial demand or from such earlier date when the claim became ascertainable and due. Delaney argues that his claim is ascertainable from the date that Whitney began the low payments of retirement benefits—July 1, 1994.
However, from the record before us, it appears that Whitney never failed to pay benefits to Delaney and was at no time in default. The two parties disagreed as to the appropriate performance for Whitney, but Whitney never failed to perform under the contract as the bank then understood it. The precise amount of the claim at stake was not ascertainable until the court determined what was the most proper payment. See River Road Constr., Inc. v. Canal Indemnity Co., 538 So.2d 625 (La.App. 1 Cir.1988.) The trial court was therefore correct to assign interest from the date of judicial demand.
Consolidated with this case are appeals by Delaney and Whitney contesting the costs awarded Delaney by the trial court. Delaney estimates his expenses compensable by law at $58,173.90; the trial court, taking a somewhat more restrained view of which court costs should be recoverable, awarded him $5,866.76. Delaney urges this court to overturn the trial judge‘s ruling. Whitney, alternately, argues that Delaney has recovered even more in costs than he should have.
In Delaney‘s original Motion to Fix and Tax Costs, he sought fees paid to the clerks of court totaling $1,971.96, to the sheriff totaling $1,084.80, and to court reporters totaling $342.00. Delaney also wantеd compensation for costs relating to depositions, for professional services from experts at trial, and for photocopies and exhibits.
The assessment of costs lies within the trial court‘s discretion, and that assessment of costs is to be reversed only if the trial court abuses that discretion. See Jacobs v. Loeffelholz, 94-1123 (La.App. 4 Cir. 12/15/94), 647 So.2d 1282, 1287.
In the present case, Whitney took strong exception to some of Delaney‘s proposed costs; they argued that Delaney‘s accounting included documents and exhibits not introduced in evidence, expert witness fees for witnesses who were not experts, and multiple copies of documents. The trial court agreed with Whitney‘s reasoning in this matter, and assessed the following costs: Clerk of Court fees—$1,971.96. Sheriff fеes— $1,084.80. Depositions—$2,692.00. Photocopies—$118.00.
Giving reasons for his lower assessment of costs, the trial court noted, “Individuals who are hired by a party and prepare for trial who either do not qualify as expert witnesses or although may be professional but testify as to facts are not entitled to fees for their time.”
“Depositions not formally introduced in evidence are not properly taxed as costs.”
“Exhibits used in court to assist the jury but not introduced in evidence are not properly taxed as costs. No one can be sure such exhibits helped the jury.”
“No law requires multiple copies of documents to assist the court or triers of fact. Such are not properly taxed for they fall in the venue of trial strategy of counsel.”
The only costs taxable against a litigant are those provided for by positive law. Succession of Franz, 242 La. 875, 139 So.2d 216, 218 (1962.) The positive law governing this situation is
This brings us to Whitney‘s contention that Delaney was actually granted more in costs than he was actually entitled to. Whitney argues first that the trial court overestimated Delaney‘s costs for deposition transcripts; we find this assertion unpersuasive, given the complexity of the case and the
From our review of the record it appears that the trial court granted Delaney those costs required by
Based on our review of the record, and for the reasons set forth, we reverse the finding of the trial court characterizing the $1.187 million payment as “compensation;” in all other respects, we affirm. In addition, the award of court costs by the trial court is affirmed.
REVERSED IN PART AND AFFIRMED IN PART
SCHOTT, C.J., concurs in part and dissents in part.
MURRAY, J., concurs in part and dissents in part for the reasons assigned by SCHOTT, C.J.
ARMSTRONG, J., dissents.
SCHOTT, Chief Judge, concurring in part and dissenting in part:
The single issue on which the original panel split was whether the Excess Plan would make up only the limitation of benefits Delaney received from the Retirement Plan as fixed by Section 415 of the Internal Revenue Code or the greater amount of that limitation of benefits required as a result the enactment of Section 401(a)(17). The parties and my colleagues have considered this particular dispute as one governed by the parole evidence rule, i.e., whether the Excess Plan is ambiguous or not and, if ambiguous, that parole evidence was admissible to explain its meaning.
I respectfully submit that the Excess Plan is not at all ambiguous, but it clearly incorporated the provisions of Section 401(a)(17).
One of the basic rules for the interpretation of a contract is found in
Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.
Applying this rule to the Excess Plan the following sections should be considered together in order to understand the meaning of the plan:
Section 2.1 Purpose—The Plan is designed to supplement the retirement benefits, disability benefits and death benefits actually paid to any Participant or Beneficiary under the Retirement Plan, and this Plan is equal to the benefit that would be payable under the general formula for the benefit provided in the Retirement Plan without considering the limitation of benefits stated in the Retirement Plan in accordance with Section 415 of the Code.
* * * * * *
Section 4.1 Amount of Benefits. The amount of the benefit payable under the Plan shаll be equal to the difference between: (1) the amount of benefits that would be payable under the Retirement Plan as determined by the Administrative Committee under Section 4.3 computed as if the Retirement Plan did not contain the limitation on annual benefits expressed in Code § 415(b)(1)(A) (as adjusted under Code § 415(d)(1)(A)) (or any successor provisions thereto) ....
(emphasis supplied).
While the first quoted section refers only to Section 415 this section is only an expression of the general purpose of the plan. However, the second quoted section, which specifically refers to the amount of benefits, provides that such benefits will include not
Because of the foregoing conclusion, I respectfully dissent from the majority‘s disposition of the interest issue raised by Delaney. The majority opinion awards interest from date of judicial demand because the “precise amount of the claim at stake was not ascertainable until the court determined what was the most proper payment.” I disagree. Whitney could easily have ascertained the correct amount to pay had they interpreted the contract correctly. I do not suggest that there was any bad faith here, only an error on their part. Interest should be computed from the date each payment became due.
ARMSTRONG, Judge, dissenting.
I respectfully dissent. I agree with the majority opinion that the $1,187,000 was not salary, but I disagree with the majority‘s conclusions as to the Excess Plan. The issue of whether a written contract is clear and explicit, and not ambiguous, is an issue of law and, as such, is subject to de novo review on appeal. Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., No. 93-CA-2364 (La. App. 4th Cir. 10/2/96), 681 So.2d 1292, 1295, writ denied, No. 96-C-2625 (La.12/13/96), 692 So.2d 1066. If a written contract is clear and explicit, and not ambiguous, then its meaning is also subject to determination de novo on appeal. Id. I believe that the Excess Plan clearly, explicitly and unambiguously does not make up for any reductions in Retirement Plan benefits which are caused by IRC § 401(a)(17). Instead, the Excess Plan clearly, explicitly and unambiguously makes up for only those reductions in Retirement Plan benеfits caused by IRC § 415. Indeed, IRC § 401(a)(17) was not even enacted until after the Excess Plan was adopted and, of course, is not even mentioned in the Excess Plan. A copy of the Excess Plan‘s Articles 2, 3 and 4 (which are also captioned Sections 2.1, 3.1 and 4.1) is attached hereto as an Appendix. As can be seen from that Appendix, Articles 2 and 3, which describe respectively the purpose of the Excess Plan and eligibility for participation in the Excess Plan, refer to IRC § 415 with no reference whatsoever to successor provisions. Article 4, also, does not make any reference to successor provisions to IRC § 415 generally. Instead, Article 4 makes reference to three specific portions of IRC § 415 and “successor provisions thereto” (emphasis added). The use of the word “thereto” limits the reference to “successor provisions” to those three specific portions of IRC § 415. Thus, Article 4‘s reference to “successor provisions” does not extend even as far as IRC § 415 generally, much less to the other sections of the IRC. More fundamentally, the phrase “successor provisions” necessarily connotes provisions which succeed (i.e. replace, displace or take the place of) the existing provisions. But, it does not appear that IRC § 401(a)(17) succeeded, replaced, repealed, amended or even directly affected IRC § 415 or any of the three specific portions of IRC § 415. Both IRC § 415 and IRC § 401(a)(17) are presently in the IRC and it appears that they were so as of the time of the events in question. Thus, IRC § 401(a)(17) is necessarily not a successor to IRC § 415.
APPENDIX
Article 2
PURPOSE OF THE PLAN
Section 2.1 Purpose. The Plan is designed to supplement the retirement benefits, disability benеfits and death benefits actually paid to any Participant or Beneficiary under the Retirement Plan, so that the combined benefit payable under the Retirement Plan and this Plan is equal to the benefit that would be payable under the general formula for that benefit provided in the Retirement Plan, without considering the limitation of benefits stated in the Retirement
Article 3
ELIGIBILTY
Section 3.1 Eligibility. Any Participant in the Retirement Plan who on or after January 1, 1984, is advised by the Administrative Committee that the Participant‘s benefits under the Retirement Plan are limited to a lesser amount than that provided by the general Retirement Plan formula as a result of the application of the limitation of benefits contained in Section 415 of the Code shall automatically become a Participant in this Plan.
Article 4
BENEFITS
Section 4.1 Amount of Benefits. The amount of the benefit payаble under the Plan shall be equal to the difference between: (1) the amount of benefits that would be payable under the Retirement Plan as determined by the Administrative Committee under Section 4.3 computed as if the Retirement Plan did not contain the limitation on annual benefits expressed in Code § 415(b)(1)(A) (as adjusted under Code § 415(d)(1)(A)) or any successor provisions thereto) and the limitation in case of a defined benefit plan and a defined contribution plan for the same employee as expressed in Code § 415(e) (and any successor provisions thereto) determined at the time the Administrative Committee last advised the Participant of the unlimited Retirement Plan benefits as provided in Section 4.3 below and (2) the amount of benefits as actually computed and payable under the Retirement Plan because of the limitations imposed by Code § 415.
ON REHEARING
We deny rehearing in this matter but note the Plaintiff/Delaney is entitled to $6,993.00 from the Excess Plan per month from July 1, 1994, subject to credits for the monthly payments o