423 So. 2d 945 | Fla. Dist. Ct. App. | 1982
Mary Zelder, plaintiff below, is the mother of Robert E. Zelder, now deceased, who was a former employee of Delta Air Lines. Robert was originally employed by Northeast Air Lines in 1957. As a result of the merger between Delta and Northeast, Robert became an employee of Delta in 1972. His employment was not subject to a written contract, nor was he covered by a collective bargaining agreement.
Robert Zelder’s work record with Delta was poor, primarily because of an alcohol problem. Notwithstanding counselling sessions and an alcoholic rehabilitation program in South Miami Hospital, Robert continued to drink. Delta made a decision to terminate Robert’s employment. Delta’s policy is to permit an employee under these circumstances to resign. If a resignation had not been forthcoming, Robert would have been fired. Robert Zelder’s resignation was received by a Delta supervisor on
By virtue of his employment with Delta, Robert Zelder was a participant in the Delta Family Care Disability and Survivorship Plan (hereinafter D & S Plan).
A.
Summary Judgment as to Delta
Delta is not a proper party to this lawsuit, and summary judgment in its favor was correct. Barrett v. Thorofare Markets, Inc., 452 F.Supp. 880 (W.D.Pa.1978); accord Boyer v. J.A. Majors Co. Employees Profit Sharing Plan, 481 F.Supp. 454 (N.D.Ga.1979) (employer not a proper party defendant where company has an ERISA plan in place); Carter v. Montgomery Ward & Co., 76 F.R.D. 565 (E.D.Tenn.1976).
Mrs. Zelder’s alternative theory of liability is likewise unavailing. Where, as here, the employee is governed by an oral agreement terminable by either party, there can be no wrongful discharge. DeMarco v. Publix Supermarkets, Inc., 360 So.2d 134 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1123 (Fla.1979), aff’d, 384 So.2d 1253 (Fla.1980), and cases cited therein. Mrs. Zelder has failed to establish any facts which would create liability on the part of Delta.
B.
Summary Judgment as to the D & S Plan
Mrs. Zelder contends that the D & S Plan had a duty to notify Robert Zelder of his conversion rights at the time of his termination.
Appellant has not furnished, nor has our independent search disclosed, any case which would create on the part of an employer or insurer an extraordinary duty owed to an employee whose diminished mental or physical condition is a result of voluntarily-induced alcoholism.
The summary judgments are accordingly affirmed.
. Under the rules of the medical plan, an employee is covered for an illness which commences while still employed and continues beyond the termination date.
. The Delta Family Care Disability and Surviv-orship Plan is governed by the provisions of the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1381 (1979).
. The conversion rights for group life insurance are described on pages D-4 and 5 of the 1979 Handbook:
Are there any other provisions relating to basic lump sum death benefits of which I should be aware?
You should be aware of the following provisions of the group insurance contract providing basic lump sum death benefits:
Your insurance will cease upon termination of employment. However, if your death should occur within 31 days after termination, or after your insurance has reduced due to retirement, the full benefit will be payable. During the 31-day grace period, you may elect to convert the terminating insurance to permanent insurance. Contact Group Insurance — Dept. 840 — ATL for an application*947 during the 31-day period. A policy for the converted insurance will be issued at regular rates without a medical examination.
. § 104(b)(4) of ERISA (29 U.S.C. § 1024(b)(1)) requires that the summary plan description be furnished to participants and those beneficiaries who are actually receiving benefits under the Plan.