agreed that Mr. Kessen could do that type of work and still collect his pension benefits. He argues that due to these representations, and his reliance on them in deciding to retire, the Trustees were estopped from later determining that his responsibilities at the CTA involved plumbing skills and suspending his pension benefits.
As discussed earlier, there is no evidence to support Mr. Kessen's argument that Mr. Sullivan or Mr. McManus ever purported to interpret the Plan document. Accordingly, the Plumbers' Pension Fund cannot be estopped to deny benefits based on their statements.
If Mr. Kessen's statement of what the Plan Secretary, Mr. Bojan, allegedly said is taken as true, as it must be for purposes of defendants' motion for summary judgment, the issue becomes whether ERISA permits enforcement of Mr. Bojan's statement. In this Circuit, it is still an open question whether oral interpretations of Plan documents may be given effect. E.g., Miller v. Taylor Insulation Co., 39 F.3d 755, 759 (7th Cir. 1994); Schoonmaker v. Employee Savings Plan, 987 F.2d 410, 412-13 (7th Cir. 1993). (While a footnote in Thomason v. Aetna Life Ins. Co., 9 F.3d 645, 650 n.10 (7th Cir. 1993), indicates the question could be answered adversely to Mr. Kessen, I conclude that Miller still leaves the question open.) See, e.g., Lockrey v. Leavitt Tube Emp. Profit Sharing Plan, 766 F. Supp. 1510 (N.D. Ill. 1991) (J. Rovner), following Kane v. Aetna Life Ins. Co., 893 F.2d 1283 (11th Cir. 1990), in holding that ERISA would permit an oral interpretation that is not inconsistent with the language of a Plan document. In appropriate cases, it seems reasonable to hold that a Plan may be bound by oral interpretations of a Plan document made by an agent with authority to provide information to a Plan participant in the face of reliance by a participant on the interpretation.
"An estoppel arises when one party has made a misleading representation to another party and the other has reasonably relied to his detriment on that representation." Black v. TIC Investment Corp., supra, 900 F.2d at 115. The alleged information provided in this case was that certain work, namely work that other trustees had said could be done by someone other than a licensed plumber, would not be considered "skills possessed by a plumber," as that term is used in the Plan document. There is no question that the person making the representation, the Plan Secretary, was authorized to assist participants in making applications for pension benefits and respond to questions regarding the Plan. Defendants' Answers to Interrogatories, No. 10. That does not answer the question of whether Mr. Kessen's reliance on the interpretation allegedly given him by Mr. Bojan was reasonable, either in terms of the interpretation or the fact that the information came from Mr. Bojan. Neither party has addressed this question.
In addition, as noted earlier, the parties do not agree on whether Mr. Bojan made the alleged representation. That is therefore a disputed issue of material fact. If a fact finder determines that Mr. Bojan did not make the statement, or that even if he did, Mr. Kessen's reliance was unreasonable, the estoppel claim falls. Mr. Kessen's claim may fail anyway because the Seventh Circuit may conclude that ERISA bars oral interpretations like the one allegedly made in this case. On this record, and on the present state of the law, however, the Plumbers' Pension Fund's motion for summary judgment will be denied. Obviously, since factual issues remain to be decided, Mr. Kessen's cross-motion must also be denied.
For the reasons set forth above, Plumbers' Pension Fund's motion for summary judgment is granted in part and denied in part. Mr. Kessen's cross-motion for partial summary judgment is denied.
ELAINE E. BUCKLO
United States District Judge
Dated: February 27, 1995.