Nightingale Nursing v. Revere Life Ins.

Opinion

USCA1 Opinion

July 19, 1995         [NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                                     
                                 ____________________


No. 94-1754


FLORENCE NIGHTINGALE NURSING SERVICES, INC.,



                                Plaintiff, Appellant,



                                          v.



                         PAUL REVERE LIFE INSURANCE COMPANY,



                                 Defendant, Appellee.



                                                     
                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
                                              ___________________



                                                     
                                 ____________________


Torruella, Chief Judge,
                                          ___________



                            Bownes, Senior Circuit Judge,
                                    ____________________



                               and Cyr, Circuit Judge.
                                        _____________



                                                     
                                 ____________________


William J. McLeod for appellant.
             _________________

             David  A. Talman, with whom Phillips, Silver, Talman & Aframe was
             ________________            _________________________________

        on brief for appellee.



                                                     
                                 ____________________


____________________



Per  Curiam.   Plaintiff  Florence  Nightingale Nursing
                    Per  Curiam.
                    ___________



          Services,  Inc. ("Nightingale")  appeals  from  a district  court



          judgment summarily  disallowing its  claim for benefits  under an



          Employee Retirement  Income  Security Act  ("ERISA")  health  and



          welfare  plan  ("Plan")  issued  by defendant  Paul  Revere  Life



          Insurance  Co. ("Revere").   As  summary judgment was  proper, we



          affirm. 


I
                                          I



                                      BACKGROUND
                                      BACKGROUND
                                      __________



                    On May  15, 1989, James Thoumes,  M.D., notified Revere



          that  its insured,  Herbert Striesfield,  would require  "Private



          Duty Licensed nursing care  for . . . Acquired  Immune Deficiency



          Syndrome."  Doctor Thoumes explicitly informed Revere that it was



          "medically necessary"  that Striesfield receive "a  minimum of 12



          hours daily [nursing] care at his home," in administering medica-



          tions and  safeguarding him from  injury which might  result from



          his unsteady gait and poor balance. 



                    Nightingale  provided  the prescribed  nursing services



          after obtaining  a valid assignment of  Striesfield's Revere Plan



          benefits and after requesting Revere to verify the substance of a



          telephone conversation in which, according to Nightingale, Revere



          had 



                    confirmed and authorized the  following bene-

                    fits, coverage and payment to [Nightingale] .

                    . . for Herbert Striesfield's nursing care:



                         (1)  Unlimited skilled nursing care.



                         (2)  Payment to  [Nightingale] for nurs-



                                          2



ing care provided  upon receipt  of

                              our  invoice will  be paid  at 100%

                              for fees incurred.



                    [Nightingale]  understand[s]  that [its]  in-

                    voice must  be  attached to  a  physician[']s

                    Letter  of  Medical  Necessity  ordering  the

                    nursing care required and  nursing documenta-

                    tion.



          The record contains no response from Revere.



                    Later,  Nightingale asked  Revere  to  confirm  another



          telephone  conversation in  which,  according  to Nightingale,  a



          responsible Revere  employee had "stated that  [Revere] would pay



          for  C.N.A.s [i.e.,  certified nurses  aides]."   Nightingale re-



          quested a response within  five days in the event there  were any



          discrepancies between its letter and Revere's understanding as to



          the substance of the putative telephone conversation.  The record



          contains no response from Revere.



                    Under the  heading "What We  Do Not Pay,"  the relevant



          Plan language provided: 



                    16.  Any  service,  supply or  treatment con-

                    nected with  custodial care.   We do  not pay

                    for these services or supplies no  matter who

                    provides, prescribes,  recommends or performs

                    them.   Custodial care means service designed

                    to  help family  members  meet  the needs  of

                    daily living  whether  they are  disabled  or

                    not.  These services include help in:



                         a.   walking  or getting  in and  out of

                              bed;



                         b.   personal  care   such  as  bathing,

                              dressing, eating  or preparing spe-

                              cial diets; or



                         c.   taking medications which the family

                              member  would  normally be  able to

                              take without help.


3



4



The summary  judgment record discloses that  the nursing services



          provided by Nightingale included:   feeding Striesfield, monitor-



          ing  his diet, making him comfortable,  moving his extremities to



          improve muscle tone, massage,  and assisting him to and  from the



          bathroom.



                    Early on, Revere  disbursed $3,250.00 in  Plan benefits



          to Nightingale.  Thereafter, however, in  reliance on the "custo-



          dial  care" exclusion, supra at  p. 3, Revere  denied all further
                                 _____



          claims based on Nightingale's nursing services to Striesfield. 



                    Nightingale  eventually  brought  suit  in  the  United



          States District Court  for the District of  Massachusetts.  After



          the case  was referred  to a magistrate  judge, see  28 U.S.C.   
                                                          ___



          636(b)(1)(B) (1995),  Revere moved for summary  judgment based on



          the  "custodial care"  exclusion.   Nightingale filed  its cross-



          motion for summary judgment and an opposition to Revere's summary



          judgment motion,  asserting that  the "custodial  care" exclusion



          was "vague and ambiguous"  and that Revere's oral representations



          to Nightingale estopped Revere from denying coverage.  



                    The magistrate judge  recommended summary judgment  for



          Revere on the grounds that coverage was plainly foreclosed by the



          "custodial care"  exclusion and that Nightingale's estoppel claim



          was  not cognizable  because the  alleged oral  representation or



          informal writing upon which it relied could not be used to modify



          the unambiguous  terms of  the Plan.    Nightingale filed  timely



          objection  to the  magistrate-judge's report  and recommendation.



          In due course, the  district court adopted the report  and recom-


5



mendation and Nightingale appealed.


II
                                          II



                                      DISCUSSION
                                      DISCUSSION
                                      __________



          A.   Standard of Review
          A.   Standard of Review
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                    Summary  judgment  rulings  are  reviewed  de  novo  to
                                                               __  ____



          determine whether the  pleadings, depositions, answers to  inter-



          rogatories, and admissions on file, together with the affidavits,



          if any,  show there is no  genuine issue as to  any material fact



          and the  moving party is entitled to judgment as a matter of law.



          Simon v. FDIC, 48 F.3d  53, 56 (1st Cir. 1995).   The evidence is
          _____    ____



          reviewed  in  the light  most  favorable to  the  party resisting



          summary judgment.  Id.
                             ___



          B.   Plan Benefits
          B.   Plan Benefits
               _____________



                    "[A] denial of benefits  challenged under [29 U.S.C.]  



          1132(a)(1)(B) is to be  reviewed under a de novo  standard unless
                                                   __ ____



          the benefit plan gives the administrator or fiduciary discretion-



          ary authority to  determine eligibility for  benefits or to  con-



          strue the terms of the  plan."  Firestone Tire and Rubber  Co. v.
                                          ______________________________



          Bruch, 489  U.S. 101, 115  (1989).  As  the Revere Plan  vests no
          _____



          such  discretion  in  the  Plan administrator  or  fiduciary,  we



          conduct plenary review. 



               1.   "Private Duty Nursing"
               1.   "Private Duty Nursing"
                     ____________________



                    The   Plan  provides  that  "reasonable  and  customary



          charges" shall be covered for "[m]edically necessary private duty



          nursing  ordered  by the  attending doctor  to  be provided  by a



          licensed registered  or licensed practical nurse."   Although the



                                          6



Plan  does not define the term, Nightingale argues on appeal that



          a genuine issue of material fact exists as to whether the servic-



          es provided Striesfield constituted "private duty nursing."  



                    This  argument  was  asserted  for the  first  time  in



          Nightingale's  objection  to  the  magistrate-judge's  report and



          recommendation.   It  was accompanied  by evidence  purporting to



          show that the nursing services provided to Striesfield "included"



          services which  a reasonable  factfinder could  consider "private



          duty nursing."   As a general  rule, parties are not  entitled to



          plenary review  of arguments  never raised before  the magistrate



          judge  designated  to  hear  and report  on  dispositive  motions



          pursuant to 28 U.S.C.   636(b)(1)(B).  Paterson-Leitch  Co., Inc.
                                                 __________________________



          v.  Massachusetts Mun. Wholesale Elec.  Co., 840 F.2d 985, 990-91
              _______________________________________



          (1st  Cir. 1988)  ("We  hold categorically  that an  unsuccessful



          party  is not entitled as of right to de novo review by the judge
                                                __ ____



          of an argument never  seasonably raised before the magistrate.").



          Although  the district  court did  not  explicitly rule  upon the



          belated argument  relating to  the meaning  of the  term "private



          duty nursing,"  we find no abuse  of discretion.  See  id. at 991
                                                            ___  ___



          (finding no abuse  of discretion in district  court's decision to



          deny "another nibble at this particular apple" where party failed



          to present its claim to magistrate judge in first instance).



                    In all events, however,  the sole evidentiary underpin-



          ning  for  the  unpreserved argument  advanced  on  appeal  is an



          affidavit  reviewing the patient  file Nightingale  maintained on



          Striesfield.  The affidavit does not specify the types of nursing


7



services  provided by  Nightingale,  nor  otherwise reveal  which



          nursing services, if any,  might constitute covered "private duty



          nursing."  The burden  of producing competent evidence sufficient



          to  demonstrate a trialworthy issue  as to whether the particular



          services rendered were covered  within the "private duty nursing"



          provision  lay  with  Nightingale.   See  McCarthy  v.  Northwest
                                               ___  ________      _________



          Airlines, Inc.,  No. 94-2282,  slip op.  at 2 (1st  Cir. May  31,
          ______________



          1995) (party resisting summary  judgment on issue as to  which it



          bears  ultimate  burden of  proof  "must  affirmatively point  to



          specific  facts that  demonstrate the  existence of  an authentic



          dispute."); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.
                      _______    _______________



          1990) (same).   As the  Nightingale affidavit failed  its mission



          even  assuming timeliness, there is  no reason to suppose further



          indulgence  would bear fruit.   See Paterson-Leitch,  840 F.2d at
                                          ___ _______________



          991.



               2.  "Custodial Care" Exclusion
               2.  "Custodial Care" Exclusion
                    _________________________



                    The Plan defines "custodial care" as:



                    service designed to  help family members meet

                    the needs  of daily  living whether  they are

                    disabled or not[, including:] 



                         a.   walking or getting in  and out

                              of bed;



                         b.   personal  care   such  as  bathing,

                              dressing, eating  or preparing spe-

                              cial diets; or



                         c.   taking medication  which the family

                              member  would  normally be  able to

                              take without help.



          The evidence  presented before  the magistrate  judge established



          that the  nursing services provided by  Nightingale came squarely



                                          8



within the  "custodial care"  exclusion:  preparation  of special



          diet,  feeding, performing  foot  massages,  "active and  passive



          Range of Motion exercises," and assisting the patient to and from



          the bathroom.  Thus, there was no error.1



          C.   Equitable Estoppel
          C.   Equitable Estoppel
               __________________



                    Nightingale contends that  Revere is equitably estopped



          from  denying  benefits  under  the  "custodial  care"  exclusion



          because these  nursing services  were provided to  Striesfield in



          reliance on  Revere's contrary  oral representations.   But since



          Nightingale has not demonstrated an ambiguity in the language  of
                                              _________



          the "custodial care" exclusion, the putative oral representations



          it attributes to  Revere were  offered to modify,  not merely  to
                                                             ___



          interpret, the ERISA Plan language.  Thus, its equitable estoppel



          claim cannot succeed.  Law v. Ernst & Young, 956 F.2d 364, 370-72
                                 ___    _____________



          (1st  Cir. 1992); Kane v. Aetna Life Ins., 893 F.2d 1283, 1285-86
                            ____    _______________



          (11th  Cir.), cert. denied, 498 U.S. 890 (1990).  See Schoonmaker
                        _____ ______                        ___ ___________



          v. Employee Sav. Plan of Amoco Corp., 987 F.2d 410, 412 (7th Cir.
             _________________________________



          1993)  (oral representations or  "other informal  statements" may



          not be used to contradict terms of ERISA plan); Greany v. Western
                                                          ______    _______



          Farm  Bureau Life  Ins. Co., 973  F.2d 812,  822 (9th  Cir. 1992)
          ___________________________



          (same); Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 59 (4th
                  _______    ________________________



          Cir. 1992) (same), cert. denied, 113 S. Ct. 1051 (1993); Degan v.
                             _____ ______                          _____



                            
        ____________________



             1Nor would  the untimely  Nightingale affidavit have  altered the

        "custodial  care" exclusion  ruling.   The  affidavit  does not  state

        whether the listed services were among  those previously reimbursed by

        Revere in the amount of $3,250,  nor does it reflect the dollar amount

        claimed  for  the services  purportedly  qualifying  as "private  duty

        nursing." 



                                          9



Ford  Motor Co., 869  F.2d 889, 895  (5th Cir. 1989)  (same); see
          _______________                                               ___



          also Hozier v. Midwest  Fasteners, Inc., 908 F.2d 1155,  1164 (3d
          ____ ______    ________________________



          Cir.  1990) (ERISA  plan  not subject  to  amendment by  informal



          communication  between employer and  plan beneficiary);  Moore v.
                                                                   _____



          Metropolitan  Life Ins.  Co., 856  F.2d 488,  492 (2d  Cir. 1988)
          ____________________________



          (similar); Musto v. American  Gen. Corp., 861 F.2d 897,  910 (6th
                     _____    ____________________



          Cir. 1988) (clear terms  of written employee benefit plan  not to



          be modified  or  superseded by  "oral  undertakings" on  part  of



          employer), cert. denied, 490 U.S. 1020 (1989).  
                     _____ ______



          D.   Evidentiary Claims 
          D.   Evidentiary Claims
               __________________



                    Nightingale appeals various evidentiary rulings  by the



          magistrate judge.  We discuss only the challenged  rulings admit-



          ting in evidence the  essential documentary exhibits proffered by



          Revere, consisting of the Plan  document and the medical  records



          Nightingale submitted to Revere.



                    Nightingale contends  that the Plan document  itself is



          inadmissible  hearsay.   See  Fed. R.  Evid.  802.   We need  not
                                   ___



          address Revere's response that the Plan document comes within the



          "business  records exception"  to the hearsay  rule, see  Fed. R.
                                                               ___



          Evid. 803(6), since the Plan document itself is not hearsay.  See
                                                                        ___



          Kepner-Tregoe, Inc.  v. Leadership  Software, Inc., 12  F.3d 527,
          ___________________     __________________________



          540 (5th Cir.) ("Signed instruments such as wills, contracts, and



          promissory notes are writings that have independent legal signif-



          icance, and are nonhearsay.") (quoting Thomas A. Mauet, Fundamen-
                                                                  _________



          tals of Trial Techniques 180 (1988)), cert. denied, 115 S. Ct. 82
          ________________________              _____ ______



          (1994).   Rather, the Plan  constitutes a form  of verbal act  by


10



Revere and  Striesfield's employer.  Mueller v.  Abdnor, 972 F.2d
                                               _______     ______



          931, 937 (8th Cir. 1992); see also Kepner-Tregoe, 12 F.3d at 540;
                                    ___ ____ _____________



          2 John W. Strong et al., McCormick on Evidence   249, at 101 (4th
                                   _____________________



          ed. 1992).   The  Federal Rules  of Evidence explicitly  "exclude



          from  hearsay the entire  category of  `verbal acts'  and `verbal



          parts of an act,' in which the statement itself affects the legal



          rights of the  parties or  is a circumstance  bearing on  conduct



          affecting their rights."   Fed. R. Evid. 801(c)  advisory commit-



          tee's note.  



                    At  no time  has  Nightingale suggested  that the  Plan



          document admitted  in evidence  is not  the document  executed by
                                             ___



          Striesfield's  employer and  Revere.   Instead,  Nightingale  has



          focused on  the lack  of personal  knowledge on  the part of  the



          affiant  who attested that  a copy of  the Plan  document was at-



          tached  to the affidavit.  Insofar as this represented an attempt



          to assert that the  Plan document was not duly  authenticated, it



          fails to assert  a basis for questioning the  affiant's statement



          that the attached document is a copy of the Plan.  



                    Nightingale likewise objects to the Nightingale medical
                                                        ___________



          records  Revere introduced  to  support its  contention that  the



          nursing  services  provided  by  Nightingale  were  custodial  in
                                                              _________



          nature.  As  a practical matter, of  course, this is an  argument



          Nightingale cannot afford to win.   If Nightingale's own  nursing



          services records were inadmissible,  there would appear to be  no



          need  for Revere  to  justify its  disallowance of  Nightingale's



          claims  under  the Plan.   In  all  events, however,  the nursing


11



records Nightingale submitted to Revere constituted admissions of
                  ___________ _________



          a party opponent, not  hearsay, see Fed. R. Evid.  801(d)(2); see
                            ___           ___                           ___



          also  United States v.  Paulino, 13 F.3d  20, 24  (1st Cir. 1994)
          ____  _____________     _______



          (finding  money order  receipt an  adoptive admission  tending to



          prove appellant  financed apartment used  for drug  distribution,



          where  receipt  was  found  in  appellant's  possession,  bearing



          appellant's name and address, and labeled "May rent").  There was



          no  abuse of discretion in denying Nightingale's motion to strike



          the nursing records.  



                    Affirmed.
                    Affirmed.
                    ________


12