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April 9, 1992



The opinion of the court was delivered by: WILLIAM T. HART


Defendant Principal Mutual Life Insurance Company has moved this court for partial reconsideration of the January 15, 1992 order denying Principal Mutual's motion to dismiss the claims against it. In the January 15 Order, it was held that plaintiff had adequately alleged three claims against Principal Mutual: (a) an Employee Retirement Income Security Act of 1974 ("ERISA") claim for breach of fiduciary duty; (b) an ERISA equitable estoppel claim; and (c) an Illinois Consumer Fraud and Deceptive Business Practices Act claim. Principal Mutual argues that the equitable estoppel claim is not viable in light of a Seventh Circuit decision issued subsequent to the Janauary 15th Order. See Pohl v. National Benefits Consultants, Inc., [ILLEGIBLE WORDS] 14198 (7th Cir. Jan. 31, 1992).

 As was discussed in the January 15 Order at 4-6, the Seventh Circuit held in Black v. TIC Investment Corp., 900 F.2d 112 (7th Cir. 1990), that, under certain circumstances, equitable estoppel principles are applicable in ERISA disputes. Following Black, this court held that the key factor in determining whether application of equitable estoppel principles could be applied was whether recognizing such principles in the particular case would affect the actuarial soundness of the fund involved. It was also recognized that the actuarial soundness of a fund was less likely to be affected if the claim involved an unfunded welfare benefits plan than if it involved a funded pension benefits plan. Additionally, it was recognized that equitable estoppel is less likely to be applied to a multiemployer plan than a plan of a single employer. The present case involves a multiemployer welfare benefits plan. On the facts alleged in the complaint, it was held that the acturaial soundness of the fund was not likely to be threatened by recognizing plaintiff's equitable estoppel claim against Principal Mutual and therefore the claim could be pursued.

 Pohl involves a claim under a welfare benefits plan. It is not stated whether the plan is that of a single employer or multiple employers. Like the claim against Principal Mutual, Pohl involves a claim against a plan administrator. Unlike the present case, Pohl did not invoke any theory of estoppel. Pohl instead relied on a claim of negligent misrepresentation. The Seventh Circuit noted that Pohl's claim had similarities to an estoppel claim, but was not "quite" the same. See Pohl, 1992 WL 14198 at *1. While holding that Pohl's claim was preempted to the extent it was a state law claim, the Seventh Circuit also indicated that it would fail as a federal common law claim under ERISA because ERISA does not recognize oral modifications of terms of welfare or pension benefits plans. Id. at *2.

 In stating that ERISA does not recognize oral modifications of the written terms of a benefits plan, Pohl cites Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992). That case, however, only holds that oral variances from the written terms of a pension plan are not permitted. Pohl also cites Nachwalter v. Christie, 805 F.2d 956, 960-61 (11th Cir. 1986), and Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1296-97 (5th Cir. 1989). Nachwalter1 and Cefalu2 also involve only pension benefits claims. Musto v. American General Corp., 861 F.2d 897, 910 (6th Cir. 1988), which Pohl cites as a "see also," involves retirement benefits given in the form of continuing medical coverage. *fn3" In any event, Pohl expressly refers to both welfare and pension plans, though it is unclear if the statement regarding oral modifications should be considered a holding or dicta. It will be assumed to be a holding. Nevertheless, Black, which is not cited in Pohl, holds that equitable estoppel can be applied under certain circumstances to override the written terms of welfare benefits plans. Given the more extensive discussion of the issue in Black, than in Pohl, including explicit discussion of the differences between pension and welfare plans, Black should still be considered good law in the Seventh Circuit, though its potential for being overruled must be recognized.

 But even if Black has been overruled and the law in the Seventh Circuit is that no type of written benefits plan can be orally modified, that is not what is alleged in this case. Under the written terms of the medical benefits plan, Earl Wilson's treatment by plaintiff was a covered service. The statements of Principal Mutual employees, which were not limited to oral statements but were also verified in writing, were not inconsistent with the written terms of the plan. The reason Wilson's treatment was not covered was not because of an inconsistency with the terms of the plan, but because Wilson's employer discontinued paying the premiums for the plan. No written modification would have been required for coverage to exist, all that would have been required was for Wilson's employer to pay the premiums due for the group policy. *fn4" Therefore, even if oral modifications of written plans are unenforceable no matter what the circumstances and equities involved, it may be that an application of that rule is not required by plaintiff's allegations of equitable estoppel. *fn5"

 Also, even if the equitable estoppel claim were dismissed, Principal Mutual does not presently contend that plaintiff fails to allege an adequate fiduciary duty claim. *fn6" The case against Principal Mutual would still continue, including the allegations of misstatements as to coverage, but under the guise of a fiduciary duty claim.

 The motion for reconsideration will be denied. It was permissible for Principal Mutual to seek reconsideration in light of the decision in Pohl. See Turner v. Chicago Housing Authority, 771 F. Supp. 924, 926 n.2 (N.D. Ill. 1991). Defendants may further address this matter, including any further developments of the case law, in the parties' pretrial order and any accompanying trial brief or summary judgment motion.

 IT IS THEREFORE ORDERED that Principal Mutual's motion for reconsideration of the court's January 15, 1992 Order is denied.


 William T. Hart


 Dated: April 9, ...

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