In this ERISA
I. BACKGROUND
Both Charles and Vicki worked for Southern Bell and were enrolled in its life insurance plan. Charles joined the plan in May 1970, before he met Vicki apd only three months after he obtained his divorce from Gail Miller. On enrollment he named Miller as the beneficiary of his life insurance policy. Charles and Vicki were married in August 1970. In January 1971 they received in the mail a certificate of insurance that listed Miller as the beneficiary of Charles’ life insurance policy. Vicki testified at trial that she and Charles agreed that he should name her as the beneficiary of his policy, and Charles took the certificate of insurance to work with him the same day that they received it.
The enrollment card that Charles filled out when he joined the plan read, in part: “I have designated my beneficiary on the
Charles took the certificate of insurance to his supervisor, Norman Gray. The certificate contained a table entitled “Change of Beneficiary Record.” A note on the same page read “Note: Entries Below Are To Be Made Only By The Employer. No Other Entries Will Be Valid.” Charles wrote Vicki’s name in the space on the Change of Beneficiary Record labeled “New Beneficiary or Beneficiaries,” dated the entry in the space marked “Effective Date,” and presented the certificate to Gray, who signed his name in the space marked “Entered By.” Gray testified that Charles believed that Gray’s signing of the certificate of insurance was sufficient to accomplish the change of beneficiaries.
Charles died in 1983 while still married to Vicki and a member of the Southern Bell life insurance plan. Because both Vicki and Gail Miller claimed the policy proceeds, Southern Bell’s insurance carrier filed an interpleader action in state court, and the state court ordered that the proceeds be paid to Miller. Vicki then brought this action to enforce her rights as a beneficiary of the plan under 29 U.S.C. § 1132(a)(1)(B) (permitting plan participants and beneficiaries to bring civil actions to recover benefits due under the plan).
After a bench trial the district court held that Southern Bell, acting through Gray, breached its fiduciary duties to Vicki in violation of 29 U.S.C. § 1104(a)(1)(B) (imposing “prudent man” standard of care on plan fiduciaries). The court found that Gray breached the fiduciary duty because he signed the certificate knowing that Charles believed his signature was sufficient to make Vicki Charles’ beneficiary and then took no further action. The court also held that Charles followed the procedure for changing his beneficiary set out in the plan booklet and the certificate of insurance. It awarded Vicki $119,000, an amount equal to the policy proceeds, plus simple prejudgment interest. Southern Bell appeals from the judgment in favor of Vicki, and she cross-appeals, contesting the district court’s award of simple rather than compound prejudgment interest.
II. DISCUSSION
Southern Bell contends that the district court erred by awarding Vicki damages under 29 U.S.C. § 1132(a)(1)(B) arising from its breach of the fiduciary duties imposed by 29 U.S.C. § 1104(a)(1)(B). It says that a cause of action for breach of fiduciary duties arises under 29 U.S.C. § 1109(a), rather than § 1132(a)(1)(B), and that under § 1109(a) only the plan, and not individual beneficiaries, may recover damages. The company also asserts that Vicki has no right to any recovery because Charles failed to follow the proper procedures for a change of beneficiaries.
Vicki contends in response that we should affirm the district court’s judgment in her favor on the basis of our decision in Kane v. Aetna Life Insurance,
We review a district court’s factual findings in a bench trial for clear error, Keefe v. Bahama Cruise Line, Inc.,
A. Breach of Fiduciary Duty
The district court held that Vicki was entitled to recover damages from Southern Bell under 29 U.S.C. § 1132(a)(1)(B) based on the company’s breach of its fiduciary duties. A cause of action for an ERISA fiduciary’s breach of its duties arises under 29 U.S.C. § 1109 rather than § 1132(a)(1)(B), and § 1109 does not permit an individual beneficiary to recover damages for breach of fiduciary duties. Massachusetts Mutual Life Insurance Co. v. Russell,
Section 1109, entitled “Liability for breach of fiduciary duty,” provides in pertinent part:
(a) 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 sub-chapter shall be personally liable to make good to such plan any losses to the plan resulting from 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.
29 U.S.C. § 1109(a) (emphasis added). The plain language of § 1109(a) makes it clear that only the plan, and not an individual beneficiary, may recover damages for a breach of fiduciary duties. The Court in Russell noted that:
A fair contextual reading of the statute makes it abundantly clear that its draftsmen were primarily concerned with the possible misuse of plan assets, and with remedies that would protect the entire plan, rather than with the rights of the individual beneficiary.
Other courts have held that § 1109 provides the sole basis for a suit alleging breach of fiduciary duties, and that a beneficiary may not bring a claim for breach of fiduciary duties under § 1132(a)(1)(B). See McMahon v. McDowell,
B. Other theories of recovery
In Nachwalter v. Christie,
(a) the provisions of the plan at issue are ambiguous such that reasonable persons could disagree as to their meaning or effect, and (b) representations are made*618 to the employee involving an oral interpretation of the plan.
Alday v. Container Corp. of America,
Vicki contends that we should affirm the district court’s judgment on the basis of Kane. She says that the plan’s provisions dealing with changes of beneficiaries were ambiguous because Southern Bell never told Charles how he could change his beneficiary, and that, although the plan description booklet provided that a member of the plan could change his or her beneficiary by completing “the proper form,” Southern Bell did not clearly identify that form. She contends that her claim satisfies the second requirement set out in Alday because the plan description booklet provided that employees should consult their supervisors if they had questions about the plan, and that Gray’s signing of the certificate of insurance amounted to a representation that the certificate was “the proper form” for effectuating a change of beneficiaries.
Southern Bell asserts that Nachwalter rather than Kane controls this case because the plan provisions dealing with changes of beneficiary are not ambiguous. The certificate of insurance that Charles presented to Gray provided that “Entries Below Are To Be Made Only By The Employer. No Other Entries Will Be Valid,” and the company contends that this provision unambiguously invalidated the entries that Charles made on the certificate.
Because we decided both Kane and Al-day after the district court entered its judgment in this case, neither party presented these contentions to the district court, and we decline to address them in the first instance. “It is a general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Clark v. Coats & Clark Inc.,
We express no opinion on the merits of Vicki’s claim under Kane. On remand the parties, of course, may raise any claims or defenses previously raised in the pleadings and not rejected by this opinion.
VACATED and REMANDED.
Notes
. Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1401.
. Because we vacate the district court’s award of damages to Vicki, we do not address her contentions regarding the proper form of interest in ERISA cases and her claim of entitlement to attorney’s fees.
