Edith S. Markus v. Penn Mutual Life Insurance Co.

389 F.2d 538

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 24, 1967
• Docket: 20247
• Status: Published

Opinions

PRETTYMAN, Senior Circuit Judge:

Appellant brought a civil action in the District Court as the beneficiary of one Samuel J. Sugar (her brother) in a retirement plan of the Penn Mutual Life Insurance Co. Mr. Sugar had been for many years an agent for that company. His retirement date under the plan was at age 65, which at the time of the events here involved was slightly more than five years away. He had contracted cancer, and the disease had progressed rapidly.

The plan provided that if the employee died or retired before the retirement date the company would pay the designated beneficiary the sum total of the employee’s contributions to the fund, plus interest; but if he lived beyond the retirement date the company would match those contributions. Thus life of the employee beyond the designated retirement date could double the amount paid the beneficiary. The plan contained a provision permitting an employee to expedite his retirement date under certain conditions and procedures.

In the late summer of 1962 senior officers of the company, being advised of the critical condition of Mr. Sugar, sent their general agent in this area to call upon him and to suggest to him an early retirement; this might increase considerably the eventual payment to his beneficiary. The call was made on October 1st, and the matter was discussed. Mr. Sugar acquiesced but selected his sixtieth birthday, November 11, 1962, as his retirement date. His son later wrote the company: “Knowing Dad as you did, I think you will understand, as I’m sure Wayne [the local general agent] does, that his last challenge was to live to see his 60th birthday —which would have been November 11th. It was for this reason alone, I know, that he picked the date — and stuck to it.” The emissary sent by the company suggested to Mr. Sugar that he “retire right away” and expressed his own view that Mr. Sugar should do so. The company officers knew and the family knew that Mr. Sugar’s illness was in a terminal phase, but the record indicates that he did not know it and that the family, at least as represented by the son, “would not suggest this to him for any amount of money.” Mr. Sugar died on November 8, 1962. The company paid the beneficiary the amount provided by the plan for cases in which death of the employee occurred before the designated date of retirement. The beneficiary sued to recover the additional amount which would be the company’s matching contribution. The District Court rendered summary jüdgment against her.

Upon this appeal the beneficiary appellant contends that under the law of torts and under the law relating to fiduciaries the company “owed a duty to use its utmost efforts to induce Mr. Sugar to retire immediately.” Upon this premise she builds her claim.

It appears clear from the record that the only information which would have induced Mr. Sugar to expedite his retirement to a date prior to his sixtieth birthday was the medical opinion that his demise was imminent. But the family was insistent that this word not be given him, a natural position premised no doubt upon affection. It also seems clear to us that the responsibility for this lack of action, which is critical to the present claim, lay as much, if not more, upon the family as upon the company. We do not see how the family can shift to the company an obligation which they themselves shared but thought it best not to exercise. Even if the company occupied a fiduciary relationship toward Mr. Sugar, its obligations as such did not go so far as to require it to violate the clear wishes of the family in this extremely personal matter of fact.

Approaching the matter from the viewpoint of the law, we are not shown any provision which requires, or even empowers, the company to advance the retirement date set by an employee or to compel the employees to do so. From the moral standpoint we see no principle which would require a company in such a situation to impose its views upon an employee despite his own decision and the judgment of his family. Mr. Sugar was an expert in pension and retirement plans and knew better than most people the scope and the limits of such plans. There was no misrepresentation here; the company stood, literally, ready and willing to implement instant retirement. Our appellant points to the equitable principle that he who undertakes to advise must do so to the full. But that principle does not apply here. Equity is not an exercise in lifeless semantics; indeed it came into existence because the law was tending to mummify. The moral problem, as we have indicated, was the persuasion of Mr. Sugar to select an immediate retirement date, and the only effective persuasion, as shown by this record, would have been the communication of news which the family wished kept from him. The moral obligation thus depicted was not upon the company.

Our dissenter is of opinion that summary judgment should not have been entered and that the case should now be remanded for an evidentiary trial. As we see it, the facts here are not in dispute. The situation, the existence and terms of the retirement agreement, the call of the company’s agent, the advancement of the retirement date by nearly five years, the agent’s suggestion of immediate retirement, Mr. Sugar’s response are established and not disputed. Claimant does not say the company did less than the present record shows; she says the company did just what it says it did, and no more. The dispute is whether it did enough; not what it did but whether what it did was enough to fulfill its legal obligation. This, we think, is the sort of question which is best handled by summary judgment.

Affirmed.