Charles W. Bellon v. the Ppg Employee Life

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1812
CHARLES W. BELLON; ROBERT E. EAKIN; JUDY GAY BURKE; LOUISE
NICHOLS; WILTON G. WALLACE; BERNADOT F. VEILLON; BARBARA
BROWN; ROBERT E. WILLIAMS, on behalf of themselves and others similarly
situated,
Plaintiffs – Appellants,
v.
THE PPG EMPLOYEE LIFE AND OTHER BENEFITS PLAN; PPG
INDUSTRIES, INC.; THE PPG PLAN ADMINISTRATOR,
Defendants – Appellees.
Appeal from the United States District Court for the Northern District of West Virginia, at
Wheeling. Gina M. Groh, District Judge. (5:18-cv-00114-GMG-RWT)
Argued: March 8, 2022 Decided: July 15, 2022
Before KING, WYNN, and RUSHING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge King wrote
the opinion, in which Judge Wynn joined. Judge Rushing wrote a separate opinion
concurring in part and dissenting in part.
ARGUED: Maureen Davidson-Welling, STEMBER COHN & DAVIDSON-WELLING,
LLC, Pittsburgh, Pennsylvania, for Appellants. Joseph J. Torres, JENNER & BLOCK
LLP, Chicago, Illinois, for Appellees. ON BRIEF: John Stember, STEMBER COHN &
DAVIDSON-WELLING, LLC, Pittsburgh, Pennsylvania; James T. Carney, Pittsburgh,
Pennsylvania, for Appellants. Ashley M. Schumacher, Clifford W. Berlow, Alexis E.
Bates, Hope H. Tone-O’Keefe, JENNER & BLOCK LLP, Chicago, Illinois, for Appellees.

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KING, Circuit Judge:
This putative class action was initiated in the Northern District of West Virginia in
July 2018 by eight plaintiffs — each a retiree of PPG Industries, Inc. (“PPG”), or the
surviving spouse of such a retiree — following the termination of the plaintiffs’ retiree life
insurance coverage under the PPG Employee Life and Other Benefits Plan (the “Benefits
Plan” or the “Plan”).1 The operative complaint of January 2020 spells out multiple claims
against the Benefits Plan, PPG, and the PPG Plan Administrator (collectively, the “PPG
defendants”). See Bellon v. PPG Emp. Life & Other Benefits Plan, No. 5:18-cv-00114
(N.D. W. Va. Jan. 10, 2020), ECF No. 69 (the “Complaint”). By a Memorandum Opinion
and Order of June 2021, the district court awarded summary judgment to the PPG
defendants on all claims, without ruling on the class certification issue. See Bellon v. PPG
Emp. Life & Other Benefits Plan, No. 5:18-cv-00114 (N.D. W. Va. June 28, 2021), ECF
No. 227 (the “Opinion”).
On appeal, the plaintiffs contest the summary judgment award as to three counts of
the Complaint, that is, Counts I, VII, and VIII. As explained herein, we identify a genuine
dispute of material fact with respect to the Count I claim that retiree life insurance coverage
was “vested” in eligible employees working for PPG during the 15-year period from 1969
to 1984 (the “vesting claim”). Accordingly, we vacate the judgment as to the vesting claim
and remand for consideration of whether the termination of the plaintiffs’ retiree life
1 To be clear, we utilize the phrase “the plaintiffs’ retiree life insurance coverage”
to refer to the insurance coverage that was provided to the retiree-plaintiffs and to the
deceased spouses of the widow-plaintiffs.

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insurance coverage contravened the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq. We otherwise affirm.
I.
A.
1.
The plaintiffs initiated this multimillion-dollar civil litigation in 2018, representing
a putative class of approximately 1,000 retired PPG employees and surviving spouses.2 By
way thereof, they primarily seek to “restore and recover contractually-vested retiree life
insurance coverage and associated benefits” from the PPG defendants. See Complaint 1.
Named as plaintiffs are six retirees who worked in PPG’s commodity chemicals business
between 1969 and 1984, and two widows of such PPG retirees. Each plaintiff was a
participant in the Benefits Plan or a retiree life insurance beneficiary.3
The Benefits Plan historically offered two alternative retiree life insurance options
to the participants. First, a Plan participant could elect a single lump-sum payment, which
amounted to one-half of the participant’s annual salary before retirement, with a maximum
2 Our recitation of the relevant facts is drawn from the record and spelled out in the
light most favorable to the plaintiffs, as mandated by precedent and Federal Rule of Civil
Procedure 56. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 276 (4th Cir.
2015) (en banc) (explaining that, in reviewing a summary judgment award, the facts are
viewed “in the light most favorable to the nonmoving party”).
3 Plaintiffs Charles W. Bellon, Robert E. Eakin, Judy Gay Burke, Louise Nichols,
Wilton G. Wallace, and Robert E. Williams are each retired PPG employees. Plaintiffs
Bernadot F. Veillon and Barbara Brown are widows of PPG retirees.

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benefit of $50,000. Second, certain Plan participants could alternatively elect a “surviving
spouse benefit” consisting of half of the lump-sum payment plus a monthly payment to the
surviving spouse for life, predicated on the amount of the deceased participant’s pension.
Life insurance coverage was provided to all of PPG’s former salaried, nonunion employees
who retired from PPG with 15 or more years of service and received a PPG pension at the
time of retirement.
In January 2013, PPG merged its commodity chemicals business with an entity
called Georgia Gulf Corporation to form a new business named Axiall. By the 2013
merger, PPG transferred to Axiall its obligations under the Benefits Plan to provide retiree
life insurance coverage to eligible former employees of PPG’s commodity chemicals
business. In December 2015, however, Axiall terminated the retiree life insurance
coverage of the plaintiffs and members of the putative class.
Of importance here, the theory of the Count I vesting claim is that, when PPG
transferred its obligations under the Benefits Plan to Axiall in 2013, the plaintiffs (or their
spouses) possessed “already earned and vested rights to retiree life insurance coverage
under the PPG Plan” that could not be lawfully terminated. See Complaint ¶ 63. According
to the plaintiffs, because their retiree life insurance coverage was vested under the Plan,
the PPG defendants are obliged under ERISA to supply such coverage, regardless of
whether Axiall provides coverage under a new benefits plan. Pursuant to the vesting claim,
the plaintiffs seek for themselves and the putative class “to recover benefits due . . . under
the terms of [the] plan, to enforce . . . rights under the terms of the plan, or to clarify . . .

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rights to future benefits under the terms of the plan.” Id. ¶ 64 (quoting 29 U.S.C.
§ 1132(a)(1)(B)).4
2.
The earliest date of any Benefits Plan document produced in the regular discovery
proceedings by the PPG defendants was the 1981 summary plan description, which
specified that when participants retired from PPG and satisfied the eligibility requirements
prescribed by the Plan, “the amount of [their] retiree life insurance is continued at no cost.”
See J.A. 1057.5 Notably, the 1981 summary description failed to reserve any right on the
part of PPG to modify, amend, or change retiree life insurance coverage. On the other
hand, the 1981 summary description provided that PPG explicitly reserved a right to
modify, amend, or change other employee benefits provided by its Plan. For example, the
1981 summary description included a reservation of rights clause pertaining to a “Tax
4 In addition to the vesting claim, Count I alleges that — regardless of whether the
plaintiffs had a vested right to retiree life insurance coverage under the Benefits Plan —
PPG contravened ERISA by transferring its obligation for that coverage to Axiall without
identifying such a transfer in the summary plan description as a circumstance that may
result in the loss of benefits (the “transfer claim”). Meanwhile, Counts VII and VIII allege
that the monthly payment component of the optional “surviving spouse benefit” qualifies
as a benefit of a pension plan under ERISA that must be funded and cannot be forfeited.
Upon careful review and without further discussion herein, we are satisfied to affirm the
district court’s award of summary judgment as to the Count I transfer claim and all of
Counts VII and VIII.
5 Under ERISA, summary plan descriptions must “be furnished to participants and
beneficiaries” to “apprise [them] of their rights and obligations under [any employee
benefit] plan.” See 29 U.S.C. § 1022(a). Here, the parties agree that the Benefits Plan and
the relevant summary plan descriptions are one and the same. (Citations herein to “J.A.
__” refer to the contents of the Joint Appendix filed by the parties in this appeal.)

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Reduction Act Stock Ownership Plan,” and stated that, “[a]lthough [PPG] intends to
continue [the ownership plan] during the period provided by law, it nevertheless reserves
the right to amend or terminate the plan at any time.” Id. at 1098.
In 1984, as revealed in the regular discovery proceedings, PPG inserted into the
Benefits Plan a new reservation of rights clause that applied to retiree life insurance
coverage. PPG then sent a newsletter to the Plan participants announcing the new
reservation of rights clause and advising that, “[a]lthough [PPG] has no plans to change
the . . . life insurance plans provided retirees, it reserves the right to modify or amend the
provisions, terms, conditions and benefits of those policies for retirees who retire on or
after September 1, 1984.” See J.A. 1804. The summary plan descriptions issued by PPG
after 1984 were supplied to the plaintiffs in discovery and show that the Plan post-1984
contained a reservation of rights clause that was applicable to retiree life insurance
coverage.
3.
After discovery concluded in September 2020, the parties each moved for summary
judgment pursuant to Federal Rule of Civil Procedure 56.6 On the merits of the Count I
vesting claim, the PPG defendants asserted that the claim fails as a matter of law because
the Benefits Plan documents do “not establish a vested benefit” for retiree life insurance
coverage. See Bellon v. PPG Emp. Life & Other Benefits Plan, No. 5:18-cv-00114, at 14
6 The plaintiffs pursued summary judgment only with respect to Count VII and
certain other counts not on appeal. They did not seek summary judgment on Count I,
including the vesting claim, or on Count VIII.

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(N.D. W. Va. Sept. 29, 2020), ECF No. 172. According to the PPG defendants, the Plan
documents demonstrate that — as of 1984 — PPG “unambiguously reserved the right to
terminate the Plan.” Id. That is, “the Plan documents expressly disavowed vesting through
reservation of rights language” because, “starting in 1984, [the Plan] contained an
unambiguous reservation of rights clause advising that PPG reserved the right to . . .
terminate the Plan benefits at any time and for any reason.” Id. at 16. The PPG defendants
insisted that PPG’s insertion of the reservation of rights clause into the Plan in 1984
“defeats [the plaintiffs’] claim that their retiree life insurance benefits vested.” Id.
The plaintiffs resisted the summary judgment request made by the PPG defendants
as to the Count I vesting claim, maintaining that “whether [the plaintiffs’] benefits were
vested is, at minimum, a disputed question of material fact.” See Bellon v. PPG Emp. Life
& Other Benefits Plan, No. 5:18-cv-00114, at 17 (N.D. W. Va. Oct. 20, 2020), ECF No.
186. The plaintiffs specifically asserted that they “were hired and began work under the
same, unqualified promise of retiree life insurance as those who retired before September
1984 (whose benefits PPG treats as vested).” Id. Accordingly, the plaintiffs maintained
before the district court that the question of vesting “is an issue for trial,” rather than for
adjudication by the court in the summary judgment proceedings. Id.
4.
In December 2020, two months after the parties filed and briefed their summary
judgment motions, the PPG defendants notified the plaintiffs’ lawyers of newly discovered
evidence that was responsive to the plaintiffs’ timely discovery requests. The newly
discovered evidence consisted of approximately 24 pages of 1984 meeting minutes and

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related official documents of the PPG Employee Benefits Committee (the “EBC”), the PPG
committee responsible for establishing, maintaining, and amending the Benefits Plan. We
refer to those documents as the “undisclosed EBC minutes.”7
Crucially, the undisclosed EBC minutes reveal that when PPG inserted the
reservation of rights clause into the Benefits Plan in 1984 applicable to retiree life insurance
coverage, it was not PPG’s first adoption of such a clause. According to the undisclosed
EBC minutes, the Plan contained — prior to 1969 — a reservation of rights clause that
allowed PPG to “modify, amend, or change” the Plan as PPG saw fit. See J.A. 2190. The
pre-1969 reservation of rights clause discussed in the undisclosed EBC minutes provided
that “PPG Industries reserves the right to modify, amend, or change the provisions, terms
and conditions, and benefits of the policy.” Id. PPG removed the earlier reservation of
rights clause from the Plan in 1969, however, because, as the undisclosed EBC minutes
explain, that reservation of rights clause “caused doubt in the minds of retirees and the
sense of security that retirees look for was absent.” Id. The undisclosed EBC minutes
recite that the pre-1969 reservation of rights clause was also removed from the Plan
because “[t]he legal ability to enforce such caveats was . . . in doubt.” Id.
The undisclosed EBC minutes emphasize that the costs of employee benefits were
consistently increasing. According to the undisclosed EBC minutes, PPG understood that
7 According to the PPG defendants, the undisclosed EBC minutes were found by
PPG sometime in 2019, while the discovery proceedings were yet ongoing in the district
court. The PPG defendants blamed their tardy revelation of the undisclosed EBC minutes
in December 2020 on a technical mishap that had been caused by an unidentified
administrative assistant.

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ERISA — which was enacted in 1974 — did not require “vesting for retiree benefits such
as life insurance or medical benefits.” See J.A. 2191. But the undisclosed EBC minutes
acknowledge that the “[r]etirees . . . [were] fighting to hold on to these benefits.” Id. In
support of the new reservation of rights clause being added to the Benefits Plan in 1984 to
apply to retiree life insurance coverage, the undisclosed EBC minutes proffer that, if PPG
were to have “any ability to modify post-retiree welfare benefits” in the future, “all our
communications must clearly state our intention to do so.” Id. The EBC then adopted the
new reservation of rights clause, which provided that “retiree benefits other than the
pension plan may be modified in the future for those retiring on and after September 1,
1984.” Id. at 2194.
5.
On December 30, 2020, the plaintiffs sought relief from the district court pursuant
to Federal Rule of Civil Procedure 56(d) — in light of the undisclosed EBC minutes —
requesting the court to reject the PPG defendants’ summary judgment motion and authorize
time for further discovery.8 In their supporting memorandum, the plaintiffs maintained
that “[t]he new documents . . . provide compelling evidence that the retiree life insurance
benefits at issue are vested.” See Bellon v. PPG Emp. Life & Other Benefits Plan, No.
5:18-cv-00114, at 2 (N.D. W. Va. Dec. 30, 2020), ECF No. 210. As the plaintiffs
8 Federal Rule of Civil Procedure 56(d) provides, in relevant part, that if a
nonmoving party “shows by . . . declaration that, for specified reasons, it cannot present
facts essential to justify its opposition” to a summary judgment motion, the district court
may “deny” the motion and “allow time . . . to take discovery.”

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emphasized, the undisclosed EBC minutes reveal “that, in 1969, [PPG] took the
extraordinary step of removing the then-existing reservation of rights clause . . . from the
[Benefits Plan] that provided retiree life insurance, to allay employee concern about the
security of promised benefits.” Id. That is, “PPG deliberately relinquished [in 1969] its
previously-asserted right to amend the Plan to take away retiree benefits, thereby
manifesting its intent to provide retirees with vested life insurance.” Id. The plaintiffs
contended that, although PPG adopted the new reservation of rights clause in 1984, that
action “had no effect on” the retiree life insurance coverage for the Plan participants —
including the retiree-plaintiffs and the deceased spouses of the widow-plaintiffs — who
were offered and accepted vested benefits by working for PPG between 1969 and 1984.
Id. At bottom, the plaintiffs maintained that the undisclosed EBC minutes constitute
evidence essential to their Count I vesting claim, and that the PPG defendants’ delay in
producing that evidence hindered the plaintiffs’ discovery efforts and rendered their
summary judgment briefing incomplete, thereby entitling them to Rule 56(d) relief. That
relief included further discovery in expectation that the PPG defendants would finally
“produce all 1969 documents.” Id. at 3.
The PPG defendants opposed the Rule 56(d) motion, underscoring that the plaintiffs
knew that the Benefits Plan “prior to 1984 did not include a reservation of rights clause.”
See Bellon v. PPG Emp. Life & Other Benefits Plan, No. 5:18-cv-00114, at 2 (N.D. W. Va.
Jan. 13, 2021), ECF No. 218. The PPG defendants argued to the district court that the
plaintiffs were not “prejudiced by the belated production of [the undisclosed EBC minutes]
because they principally reflect a fact that [the plaintiffs] have known since at least the

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outset of this lawsuit — that the reservation of rights clause was added to the Plan
documents in 1984.” Id. In the PPG defendants’ words, the plaintiffs “already had all of
the facts necessary to argue that they vested in their future retiree life insurance benefits by
working for PPG before 1984.” Id. Finally, the PPG defendants maintained that, even if
the undisclosed EBC minutes reveal “new facts,” the Rule 56(d) motion should be denied
because the “[p]laintiffs cannot base a vesting claim on actions taken by [PPG] in 1969 —
years before ERISA became effective and set the vesting standards that govern [the Count
I vesting] claim.” Id. at 3 (internal quotation marks omitted).
B.
By its Opinion of June 28, 2021, the district court disposed of the two motions that
are pertinent to our analysis of the Count I vesting claim. First, the court denied the
plaintiffs’ Rule 56(d) motion. And second, the court awarded summary judgment to the
PPG defendants — at their request — on the vesting claim.
Addressing the Rule 56(d) motion, the district court determined that the undisclosed
EBC minutes pertaining to the Benefits Plan as it existed in 1969 — and in the 15-year
period between 1969 and 1984 — are immaterial to the vesting claim. As the court put it,
the undisclosed EBC minutes “are not the sort of smoking gun that [the plaintiffs] suggest.”
See Opinion 5. That is so, the court specified, because the plaintiffs knew and
acknowledged prior to the production of the undisclosed EBC minutes that there was no
reservation of rights clause in the Plan before 1984. With no analysis, the court further
pronounced that “[t]o the extent [the plaintiffs] argue that PPG’s decision to remove the
previously existing 1969 [reservation of rights clause] would have somehow bolstered their

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[vesting claim], this argument lacks merit.” Id. The court summarized that the undisclosed
EBC minutes — although “responsive” to proper and timely discovery requests made by
the plaintiffs — “are not material to the ultimate issues” at hand. Id.
The district court then considered the PPG defendants’ request for summary
judgment on the Count I vesting claim. In awarding its judgment in favor of the PPG
defendants, the court reasoned that PPG’s inclusion of a reservation of rights clause in the
Benefits Plan — beginning in 1984 — “is ‘plainly inconsistent with any alleged intent to
vest [the retiree life insurance] benefits.’” See Opinion 8 (quoting Gable v. Sweetheart
Cup Co., 35 F.3d 851, 856 (4th Cir. 1994)) (internal quotation marks omitted). By ruling
as it did on the Rule 56(d) and summary judgment motions, the court suggested that even
if retiree life insurance coverage constituted a vested benefit between 1969 and 1984, the
adoption of the reservation of rights clause in 1984 allowed PPG to thereafter terminate
such coverage for Plan participants who worked between 1969 and 1984, but who had not
yet retired. In other words, consistent with ERISA, PPG could terminate retiree life
insurance coverage for not only future Plan participants, but also present ones.
Ultimately, the district court awarded summary judgment to the PPG defendants on
all counts and dismissed the Complaint with prejudice. The plaintiffs timely noted this
appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review a summary judgment award de novo, “based on our independent review
of the entire record.” See Trs. of the Plumbers & Pipefitters Nat’l Pension Fund v.

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Plumbing Servs., Inc., 791 F.3d 436, 446 (4th Cir. 2015). Summary judgment is
appropriate only “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a).
In conducting summary judgment review, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in [the non-movant’s] favor.” See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
III.
On appeal, the plaintiffs contend that — based on the existing record, including the
undisclosed EBC minutes evidencing that retiree life insurance coverage constituted a
vested benefit under the Benefits Plan between 1969 and 1984 — the district court erred in
awarding summary judgment to the PPG defendants on the Count I vesting claim. The
court ruled that the plaintiffs’ retiree life insurance coverage could be terminated consistent
with ERISA because the Plan included a reservation of rights clause as of 1984. That is,
the court apparently believed that the adoption of the reservation of rights clause in 1984
allowed PPG to terminate retiree life insurance coverage for all present and future Plan
participants, even if such coverage had previously been vested for participants like the
plaintiffs (and their spouses) who worked between 1969 and 1984.
As explained below, we agree with the plaintiffs that if their retiree life insurance
coverage were ever a vested benefit, PPG could not rely on the later-added reservation of
rights clause to terminate that coverage. Moreover, we recognize that the existing record
reflects a genuine dispute of material fact as to the vesting issue. We therefore vacate the

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judgment with respect to the Count I vesting claim and remand for further proceedings
thereon.9
A.
Enacted into law in 1974, ERISA is designed to, inter alia, protect “the interests of
participants in employee benefit plans and their beneficiaries.” See 29 U.S.C. § 1001(b).
Under ERISA, there are strict vesting requirements for some employee benefit plans,
particularly pension plans. See, e.g., id. § 1053. ERISA defines the term “vested” as
“nonforfeitable.” Id. § 1002(25). As the Sixth Circuit has succinctly put it, “[t]o vest
benefits is to render them forever unalterable.” See Sprague v. Gen. Motors Corp., 133
F.3d 388, 400 (6th Cir. 1998).
ERISA exempts from its vesting requirements what it calls an “employee welfare
benefit plan.” See Sejman v. Warner-Lambert Co., Inc., 889 F.2d 1346, 1348 (4th Cir.
1989). Such a plan includes one “maintained for the purpose of providing for its
participants or their beneficiaries, through the purchase of insurance or otherwise, . . .
9 We note that the remand proceedings will afford an opportunity for the further
discovery sought by the plaintiffs by way of their unsuccessful motion under Federal Rule
of Civil Procedure 56(d), including disclosure of additional documents related to PPG’s
removal of the reservation of rights clause from the Benefits Plan in 1969. If the PPG
defendants continue to fail to produce such evidence, that may be grounds for a trier of fact
“to draw adverse inferences from [the] failure to present evidence, the loss of evidence, or
the destruction of evidence.” See Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th
Cir. 1995). Even harsher sanctions for the spoliation of evidence could be warranted. See
Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (explaining that “a district
court has broad discretion in choosing an appropriate sanction for spoliation,” which
“should be molded to serve the prophylactic, punitive, and remedial rationales underlying
the spoliation doctrine” (internal quotation marks omitted)).

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benefits in the event of . . . death.” See 29 U.S.C. § 1002(1).10 As we explained in our
1994 Gable decision, ERISA does not prohibit an employer from modifying or terminating
a welfare plan that is not vested. See Gable v. Sweetheart Cup Co., 35 F.3d 851, 855 (4th
Cir. 1994). That is, an employer is generally “free to amend the terms of the plan or
terminate it entirely.” See Biggers v. Wittek Indus., Inc., 4 F.3d 291, 295 (4th Cir. 1993)
(citing Sejman, 889 F.3d at 1348-49).
Importantly, however, an employer can elect to “waive its statutory right to modify
or terminate benefits . . . by voluntarily undertaking an obligation to provide vested,
unalterable benefits.” See Gable, 35 F.3d at 855 (alteration and internal quotation marks
omitted). As such, an employer “is generally free under ERISA, for any reason at any time,
to adopt, modify, or terminate its welfare plan” — “unless [the] employer contractually
cedes its freedom.” See Inter-Modal Rail Emps. Ass’n v. Atchison, Topeka & Santa Fe Ry.
Co., 520 U.S. 510, 515 (1997) (alterations and internal quotation marks omitted).
B.
As previously discussed, the district court’s analysis of the vesting claim was
premised on the fact that the Benefits Plan contained a reservation of rights clause as of
1984. That clause, per the court, “is ‘plainly inconsistent with any alleged intent to vest
[the retiree life insurance] benefits.’” See Opinion 8 (quoting Gable, 35 F.3d at 856). What
the court failed to appreciate was that — if, as the plaintiffs assert, the removal of the prior
10 We are satisfied that the district court correctly ruled that, in providing retiree life
insurance coverage to PPG employees, the Benefits Plan constitutes an “employee welfare
benefit plan” under ERISA.

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reservation of rights clause in 1969 vested the retiree life insurance coverage for Plan
participants working between 1969 and 1984 — the new reservation of rights clause
allowed PPG to modify or terminate the retiree life insurance coverage for only those Plan
participants hired after the clause’s adoption in 1984. Put differently, if the retiree life
insurance coverage constituted a vested benefit between 1969 and 1984, it could not
subsequently be taken away from the eligible Plan participants who worked during that 15-
year period. See Wheeler v. Dynamic Eng’g, Inc., 62 F.3d 634, 638 (4th Cir. 1995)
(observing that once benefits vest, “any amendment occurring thereafter [cannot] apply
retroactively to deny coverage that [has] already vested”).
Indeed, the very precedent invoked by the district court — our 1994 Gable decision
— recognizes that ERISA allows employers to elect “to provide vested, unalterable
[welfare plan] benefits.” See 35 F.3d at 855. And in no way does Gable suggest that
ERISA somehow empowered employers to terminate benefits that vested prior to ERISA’s
1974 enactment. Rather, Gable simply rejected the vesting claim of plaintiffs who relied
on an apparent promise of retiree health care coverage “during the remainder of [their]
lifetime[s] at company expense,” where such promise was made with respect to an ERISA-
era welfare plan that was subject to a clear reservation of rights clause. Id. at 853-54. In
rejecting the Gable plaintiffs’ vesting claim, we emphasized that “[n]othing in the [relevant
plan documents] indicated that the plan participants’ health insurance benefits would vest
upon retirement or at any other time. Id. at 856. “To the contrary,” the relevant plan
documents “specifically reserved the company’s right to modify the plan by stating that
‘this Policy may be amended or discontinued at any time without the consent of or notice

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to any plan participant.’” Id. (alterations omitted). It was that “express reservation of the
company’s right to modify or terminate the participants’ benefits” that we deemed to be
“plainly inconsistent with any alleged intent to vest those benefits.” Id.
Critically, unlike the plaintiffs in these proceedings, the Gable plaintiffs did not
assert that vesting occurred prior to the employer’s adoption of the pertinent reservation of
rights clause. Again, as proof of vesting, the Gable plaintiffs relied on plan documents that
simultaneously included both an apparent promise of lifetime benefits and an express
reservation of the employer’s right to modify or terminate those benefits. Consequently,
our Gable decision does not support the proposition — proffered by the district court herein
— that the adoption of the reservation of rights clause in 1984 allowed PPG to thereafter
terminate the plaintiffs’ retiree life insurance coverage even if that coverage had previously
vested. Moreover, if the coverage was in fact vested, Gable compels the conclusion that
PPG “waiv[ed] its statutory right to modify or terminate [that benefit].” See 35 F.3d at 855
(internal quotation marks omitted).
C.
In these circumstances, the issue of whether the plaintiffs’ retiree life insurance
coverage ever constituted a vested benefit is wholly material to the proper resolution of the
Count I vesting claim. It is, of course, the plaintiffs’ burden to prove vesting. See Gable,
35 F.3d at 855. Generally, “[b]ecause such an obligation constitutes an extra-ERISA
commitment, . . . courts may not lightly infer the existence of an agreement to vest
employee welfare benefits.” Id. Moreover, “in recognition of ERISA’s requirement that
employee benefit plans be governed by written plan documents . . . , any participant’s right

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to a fixed level of lifetime benefits must be found in the [ERISA] plan documents and must
be stated in clear and express language.” Id. (internal quotation marks omitted).
Here, however, the plaintiffs assert that vesting first occurred in 1969, prior to
ERISA’s enactment in 1974. Thus, it is doubtful that the plaintiffs should be held to any
requirement for “clear and express language” in ERISA plan documents. In any event, the
plaintiffs do not ask the courts to “lightly infer” vesting. Rather, for proof of vesting, they
principally rely on PPG’s purposeful removal in 1969 of the then-existing reservation of
rights clause according PPG discretion to modify the Benefits Plan and its retiree life
insurance coverage. As the plaintiffs describe the removal of the reservation of rights
clause, “[t]his type of action is virtually unheard-of, and establishes PPG’s intention to
waive its rights and offer unalterable (i.e., vested) benefits to its employees who were
employed in 1969 or hired thereafter before September 1, 1984, when PPG reinserted [a
reservation of rights clause] in the Plan.” See Br. of Appellants 15.
Ordinary principles of contract law apply to the plaintiffs’ vesting claim, whether
or not we should utilize post-ERISA precedents in ascertaining if vesting occurred in 1969.
See Wheeler, 62 F.3d at 638 (“We interpret an ERISA [employee benefit] plan under
ordinary principles of contract law, enforcing the plan’s plain language in its ordinary
sense.”). In assessing the vesting claim just as we “would any other contract claim,” we
look not only “to the terms of the [Benefits Plan],” but also to “other manifestations of the
parties’ intent.” See Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan, 201
F.3d 335, 341 (4th Cir. 2000) (alteration and internal quotation marks omitted). Certainly,
the purposeful deletion of the pre-1969 reservation of rights clause from the Plan may be

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19
seen as a manifestation of PPG’s intent to relinquish its right to modify or terminate Plan
benefits and voluntarily undertake an obligation to provide vested retiree life insurance
coverage. See Fireguard Sprinkler Sys., Inc. v. Scottsdale Ins. Co., 864 F.2d 648, 651 (9th
Cir. 1988) (“Words deleted from a contract may be the strongest evidence of the intention
of the parties.” (internal quotation marks omitted)); cf. Davidson Cnty. v. Ground
Improvement Techniques, Inc., No. 95-2176, 1996 WL 195512, at *3 (4th Cir. Apr. 24,
1996) (unpublished) (concluding, based on the parties’ deletion of an arbitration clause
from a standard construction contract, that their “intent was clear — they expressly chose
not to arbitrate”).
In addition to PPG’s deletion of the pre-1969 reservation of rights clause, the
plaintiffs have other evidence that arguably manifests PPG’s intent to vest the retiree life
insurance coverage during the 15-year period between 1969 and 1984. That evidence
includes the undisclosed EBC minutes, explaining in 1984 that PPG had removed the
reservation of rights clause in 1969 because that provision had “caused doubt in the minds
of retirees and the sense of security that retirees look for was absent.” See J.A. 2190. The
plaintiffs’ evidence also includes the 1981 summary plan description, which included a
reservation of rights clause for other Plan benefits, but not for retiree life insurance
coverage. Under the plaintiffs’ evidence, PPG treated the retiree life insurance coverage
as a vested benefit from 1969 to 1984, well past ERISA’s 1974 enactment.11
11 Our dissenting colleague’s opinion rests upon the faulty premise that — because
the 1981 summary plan description is “the only Plan in the record before PPG added the
reservation of rights language [in 1984]” — the 1981 summary description “governs” the
(Continued)

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20
To counter the plaintiffs’ proof of vesting, the PPG defendants underscore that the
undisclosed EBC minutes recite that “one of PPG’s apparent reasons for removing the
Plan’s reservation of rights provision in 1969 was that the ‘legal ability to enforce such
caveats was also in doubt.’” See Br. of Appellees 29 n.10. The PPG defendants thereby
suggest that the deletion of the reservation of rights clause was not for the purpose of
vesting, but for the purpose of removing a provision of dubious legality in the pre-ERISA
era. In so doing, however, the PPG defendants simply confirm that — as the plaintiffs
insisted to the district court — vesting is a disputed issue of material fact.
There being such a factual dispute, the district court erred in awarding summary
judgment to the PPG defendants on the Count I vesting claim. Accordingly, although we
otherwise affirm, we vacate the court’s judgment with respect to the vesting claim and
remand for further consideration thereof, which may include related discovery, spoliation
issues, and class certification.12
plaintiffs’ vesting claim. See post at 23. From there, the dissent concludes that the
plaintiffs cannot prove vesting, in that the 1981 summary description does not include
“clear and express language” evidencing an intent by PPG to provide vested retiree life
insurance coverage. Id. at 24 (quoting Gable, 35 F.3d at 855). Of course, the plaintiffs do
not — as the dissent erroneously insists — rely on the post-ERISA 1981 summary
description as the source of vesting; rather, they rely on PPG’s pre-ERISA removal in 1969
of the then-existing reservation of rights clause. The 1981 summary description and its
omission of a reservation of rights clause is simply evidence that PPG continued to treat
the retiree life insurance coverage as a vested benefit once it vested in 1969 and up until
1984. Evidence of PPG’s intent to vest in 1969 includes the undisclosed EBC minutes,
which the dissent inexplicably ignores.
12 On remand, the district court may also find it appropriate to address two
alternative theories of the plaintiffs’ Count I vesting claim that we do not unnecessarily
reach today: (1) that the monthly payment component of the Benefits Plan’s optional
(Continued)

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21
IV.
Pursuant to the foregoing, we affirm in part, vacate in part, and remand for such
other and further proceedings as may be appropriate.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
“surviving spouse benefit,” as a promised monthly payment to the surviving spouse for
life, constitutes a vested benefit; and (2) that, applying principles of waiver and estoppel,
PPG cannot terminate retiree life insurance coverage for eligible Plan participants who
worked between 1969 and 1984.

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22
RUSHING, Circuit Judge, concurring in part and dissenting in part:
Like my colleagues in the majority, I would affirm the district court’s award of
summary judgment to the PPG defendants on Counts 7 and 8 and the Count 1 transfer
argument. But I would also affirm the award of summary judgment on the Count 1 vesting
claim in its entirety because, interpreting the plan documents according to binding
precedent, the retiree life insurance benefit did not vest.
I.
In Count 1, Plaintiffs claim that PPG’s Employee Benefits Plan gave them a vested
right to retiree life insurance coverage that could not lawfully be altered or terminated.
ERISA does not require the retiree life insurance benefit to vest; therefore, PPG had “a
statutory right to amend the terms of the plan or terminate it entirely.” Gable v. Sweetheart
Cup Co., 35 F.3d 851, 855 (4th Cir. 1994) (internal quotation marks omitted). But an
employer “may waive its statutory right to modify or terminate benefits . . . by voluntarily
undertaking an obligation to provide vested, unalterable benefits.” Id. (internal quotation
marks and brackets omitted). Plaintiffs bear the burden to prove that PPG’s Benefits Plan
“contains a promise to provide vested [retiree life insurance] benefits.” Id. To avoid
summary judgment on Count 1, Plaintiffs must identify evidence from which a reasonable
jury could so conclude. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
They have failed to do so.
A.
The operative Benefits Plans when PPG transferred responsibility for Plaintiffs’
benefits to Axiall (2013), when Axiall terminated the retiree life insurance benefit (2016),

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23
and when all Plaintiffs retired from PPG (between 1993 and 2012) included a clause
“reserv[ing] the right to amend, modify or terminate the[] benefits at any time and for any
reason.” J.A. 674, 797, 903, 1007, 1478, 1579; see J.A. 1630. As we have previously held,
“[t]his express reservation of the company’s right to modify or terminate the participants’
benefits is plainly inconsistent with any alleged intent to vest those benefits.” Gable, 35
F.3d at 856. The reservation of rights clause, therefore, “is more than sufficient to defeat
plaintiffs’ claim that the company provided vested [retiree life insurance] benefits.” Id.
B.
Recognizing the problem posed by the reservation of rights clause—which PPG
added to the Plan in 1984 and maintained consistently since—Plaintiffs argue that an earlier
version of the Plan without a reservation of rights governs their claim. According to
Plaintiffs and my colleagues in the majority, a jury could find that Plaintiffs’ right to retiree
life insurance coverage vested before 1984, rendering it unalterable for all employees who
worked under a pre-1984 Benefits Plan. Specifically, Plaintiffs rely on the 1981 Benefits
Plan, the only Plan in the record before PPG added the reservation of rights language. The
Plan documents, however, foreclose Plaintiffs’ imaginative claim.1
1 As an initial matter, the majority offers no justification for applying a pre-1984
version of the Benefits Plan to these Plaintiffs, who are all former employees who retired
after 1992 or the widows of former employees who retired (and died) after 1996. If the
pre-1984 Plan provided a vested retiree life insurance benefit, that Plan should be consulted
to determine when the benefit vested. The majority appears to believe, without analysis or
contractual support, that the benefit vested at some point while Plaintiffs or their husbands
were still working for PPG before 1984.

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24
A plan participant’s right to a fixed level of lifetime benefits beyond those required
by ERISA “must be ‘found in the plan documents and must be stated in clear and express
language.’” Gable, 35 F.3d at 855 (quoting Wise v. El Paso Nat. Gas Co., 986 F.2d 929,
937 (5th Cir. 1993)). The absence of a reservation of rights clause in plan documents does
not, by itself, create an inference of vesting; rather, the intent to vest must be explicit. See
Wise, 986 F.2d at 938 (holding that “silence” regarding an employer’s right to modify the
plan does not “impliedly cede the right to later amend or discontinue coverage”). The
majority “doubt[s]” whether this requirement applies here, supra, at 18, despite the fact
that the majority is assessing a 1981 summary plan description—drafted well after the 1974
enactment of ERISA.
Even accepting the majority’s dubious premise, however, ordinary principles of
contract law apply to plan documents created before and after ERISA. See Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 112–113 (1989) (“Actions challenging an
employer’s denial of benefits before the enactment of ERISA were governed by principles
of contract law.”); Wheeler v. Dynamic Eng’g, Inc., 62 F.3d 634, 638 (4th Cir. 1995) (“We
interpret an ERISA [employee benefit] plan under ordinary principles of contract law
. . . .”). We therefore must enforce “the plan’s plain language in its ordinary sense.”
Wheeler, 62 F.3d at 638. Plaintiffs candidly admit that “nothing in the [1981] booklet
states that retiree benefits are ‘vested.’” Opening Br. 25–26. More than that, Plaintiffs
identify no language in the Plan that they claim could be interpreted as promising to provide

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25
vested, unalterable retiree life insurance coverage.2 See, e.g., Oral Arg. at 4:32–7:21. In
the absence of any contractual provision even arguably creating a vested right, none exists.
Plainly put, we cannot “presume lifetime vesting from silence” because that is “not a valid
way to read a contract.” CNH Indus. N.V. v. Reese, 138 S. Ct. 761, 766 (2018); see M&G
Polymers USA, LLC v. Tackett, 574 U.S. 427, 442 (2015) (“[W]hen a contract is silent as
to the duration of retiree benefits, a court may not infer that the parties intended those
benefits to vest for life.”).
The majority ignores the language of the Plan it claims to be interpreting. Indeed,
it expressly eschews the need to look at any contract at all, supra, at 20 n.11, skipping
straight to extrinsic evidence about PPG’s intentions when removing a reservation of rights
clause from a prior version of the Benefits Plan in 1969. But courts generally may not
consult extrinsic evidence to determine the parties’ intentions unless the contract is
ambiguous. See 11 R. Lord, Williston on Contracts §§ 30:4, 30:6 (4th ed. 2012 & Supp.
2 Plaintiffs advance an additional vesting theory regarding the optional surviving
spouse benefit, which the majority does not address. See supra, at 21 n.12. Instead of
receiving life insurance in one lump sum, a plan participant could elect the surviving spouse
benefit, which provided half of the lump sum payment plus a monthly payment to the
surviving spouse for life. Plaintiffs contend that, even if the retiree life insurance as a
whole did not vest, at a minimum the monthly payment component of the surviving spouse
option vested because the Plan described it as “guaranteed lifetime income to an eligible
spouse.” J.A. 1057. Under general principles of insurance contract law, the right to life
insurance benefits vests “at the time of the plan participant’s death.” Blackshear v.
Reliance Standard Life Ins. Co., 509 F.3d 634, 641 (4th Cir. 2007), abrogated on other
grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). The “guaranteed lifetime
income” language is consistent with this principle. Plaintiffs do not identify anything in
the Plan to suggest that these monthly life insurance payments became “guaranteed” to a
“surviving” spouse before the retiree died.

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26
2022); see also CHN Indus., 138 S. Ct. at 765. The majority errs by relying on extrinsic
evidence to create a supposed genuine issue of material fact without first finding the 1981
Benefits Plan ambiguous.
In fact, the 1981 Benefits Plan is not ambiguous on the question of vesting the retiree
life insurance benefit. “[A] contract is not ambiguous unless, after applying established
rules of interpretation, it remains reasonably susceptible to at least two reasonable but
conflicting meanings.” CNH Indus., 138 S. Ct. at 765 (internal quotation marks and
brackets omitted). Here, that means the 1981 Benefits Plan was “not ambiguous unless it
could reasonably be read as vesting [retiree life insurance] benefits for life.” Id. Plaintiffs
identify nothing in the Plan that they suggest could support such an interpretation; they
assert only that the Plan’s silence creates ambiguity. But, as explained above, the Supreme
Court has expressly rejected inferring ambiguity from silence on vesting as contrary to
ordinary principles of contract law. CNH Indus., 138 S. Ct. at 766; see also Tackett, 574
U.S. at 442. Because the 1981 Benefits Plan cannot reasonably be read as vesting the
retiree life insurance benefit, the Plan is not ambiguous and Plaintiffs’ extrinsic evidence
cannot influence the interpretation of the contract.
The majority’s unorthodox approach is not supported by the three cases it cites. See
supra, at 18–19. The first case quotes a Supreme Court decision noting that courts before
ERISA reviewed employee benefit claims like “any other contract claim—by looking to
the terms of the plan and other manifestations of the parties’ intent.” Firestone Tire, 489
U.S. at 112–113. As that case’s context and more recent precedent both demonstrate, the
Supreme Court did not upend traditional contract law regarding the limited use of extrinsic

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27
evidence with this mention of “other manifestations of the parties’ intent.” Equally telling,
the quoted propositions from the majority’s other two cases both concern interpreting the
actual words of a contract, not resort to extrinsic evidence. In Fireguard Sprinkler System,
Inc. v. Scottsdale Insurance Co., the court compared two clauses of a liability insurance
policy and accorded relevance to the fact that a phrase in one paragraph was omitted in the
paragraph immediately following. 864 F.2d 648, 651 (9th Cir. 1988). And Davidson
County v. Ground Improvement Techniques, Inc., required the court to interpret a
“Supplementary Conditions” document appended to a standard contract, which stated:
“Exhibit GC-A [the arbitration clause] has been deleted.” No. 95-2176, 1996 WL 195512,
at *3 (4th Cir. Apr. 24, 1996) (italics omitted). These cases do not support looking outside
the contract to one party’s historical drafting choices and private meeting minutes to glean
extratextual insights.
In any event, no authority cited by the majority supports construing silence on the
topic of vesting as anything other than a denial of lifetime vesting. The fact that PPG
reserved its right to modify the Benefits Plan in explicit language before 1969 does not
allow a court to read the silence in later Plan documents as a promise to provide a fixed
level of retiree life insurance coverage that cannot be altered or terminated even after
expiration of the parties’ contract. “[T]he rule that contractual provisions ordinarily should
be enforced as written is especially appropriate when enforcing an ERISA welfare benefits
plan.” Tackett, 574 U.S. at 435 (internal quotation marks and brackets omitted). Because
no Plan document in this case has terms that vest the retiree life insurance benefit or create

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28
ambiguity on that score, Plaintiffs have failed to identify evidence from which a jury could
find in their favor on Count 1, and summary judgment was appropriate.3
II.
This appeal also resolves Plaintiffs’ claims in Counts 7 and 8, which are premised
on the faulty assumption that the surviving spouse benefit was a “pension plan” as defined
by ERISA. As previously noted, the surviving spouse benefit was an option within the
retiree life insurance benefit. Instead of one lump sum life insurance payment, a Plan
participant could elect the surviving spouse benefit, which provided half of the lump sum
payment plus a monthly payment to the surviving spouse for life. The district court held
that the surviving spouse benefit was not a “pension plan” because it did not “provide[]
retirement income to employees” or “result[] in a deferral of income by employees.” 29
U.S.C. § 1002(2)(A). Instead, it was a “welfare plan” that provided “benefits in the event
of . . . death.” Id. § 1002(1).
The majority affirms the district court’s decision, and I agree. See supra, at 5 n.4,
15 n.10. Because the surviving spouse benefit did not qualify as an ERISA “pension plan,”
the district court correctly granted summary judgment to the PPG defendants on Counts 7
and 8 of Plaintiffs’ amended complaint.
3 The majority appears to assume that on remand the district court will reopen
discovery even though this Court does not reverse the district court’s Rule 56(d) ruling
because it was not appealed. Supra, at 14 n.9. In the process, the majority makes
unwarranted references to spoliation and adverse inferences, accusations that not even
Plaintiffs have lodged against the PPG defendants and which lack any basis in the record
on appeal. See supra, at 14 n.9, 21.

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29
III.
In sum, I would affirm the district court in full. I join the majority in affirming
summary judgment in favor of the PPG defendants on Counts 7 and 8. But the majority
reaches the wrong conclusion on Count 1 by dispensing with ordinary principles of contract
interpretation to find that Plaintiffs could prevail on their claim that the retiree life
insurance benefit vested. Because the plan documents unambiguously do not vest that
benefit, I must respectfully dissent from that holding.

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