NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      _____________

                          No. 12-4093
                         _____________

                       KELLY ROARTY,
                                   Appellant

                                v.

  TYCO INTERNATIONAL LTD GROUP BUSINESS TRAVEL
 ACCIDENT INSURANCE PLAN, an employee welfare benefit plan;
     LIFE INSURANCE COMPANY OF NORTH AMERICA,
                   Plan Administrator



          On Appeal from the United States District Court
                    for the District of Delaware
               (District Court No.: 1-06-cv-00195)
           District Judge: Honorable Gregory M. Sleet



            Submitted under Third Circuit LAR 34.1(a)
                      on September 9, 2013


               (Opinion Filed: September 26, 2013 )


BEFORE: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges
                                       OPINION


RENDELL, Circuit Judge:

       This matter returns to us on appeal for the second time after we remanded to the

United States District Court for the District of Delaware for the trial judge to consider (1)

whether there were “extraordinary circumstances” in order to invalidate Tyco

International’s 2002 Business Travel Accident Plan (“2002 BTA Plan”) which eliminated

non-business travel death benefits previously provided for in an earlier 2000 version of

the Plan, and (ii) if not, whether Daniel Roarty’s widow, Kelly Roarty, would be entitled

to benefits under the 2002 BTA Plan. We also noted that the District Court could

consider on remand Mrs. Roarty’s claim against the Life Insurance Company North

America (“LICNA”) for breach of fiduciary duty under ERISA §502(a)(3).1

       Mr. Roarty was killed in a tragic accident on August 8, 2004 while returning home

from Pittsburgh. Mr. Roarty and his family had left for Pittsburgh from their home in

Delaware on August 2, taking two cars so that Mr. Roarty could attend to some business

in the Pittsburgh area, after which the family attended a wedding there. The parties are

well aware of the evidence pointing in different directions as to whether Mr. Roarty’s

death occurred while he was on business – in which event the 2002 BTA Plan would

provide benefits – or not.




1
  We have jurisdiction over this appeal from the final order of the District Court pursuant
to 28 U.S.C. § 1291.
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       The District Court had originally held a one day bench trial and issued a

memorandum opinion concluding that Tyco’s failure to use measures reasonably

calculated to ensure Mr. Roarty’s timely receipt of the required summary plan description

or summary of material modifications following the modification to the 2000 Plan

invalidated the 2002 BTA Plan, such that the 2000 Plan would control, and LICNA’s

denial was therefore unreasonable.

       After we held that Tyco’s failure would only invalidate the later Plan if there was

a showing of “extraordinary circumstances”, and vacated the District Court’s order and

remanded, the District Court issued a memorandum opinion, relying on its previous

findings, supplemented as necessary by new findings consistent with the record from the

previous bench trial. The District Court cited the standard we have set for “extraordinary

circumstances”: “where the employer has acted in bad faith, or has actively concealed a

change in the benefit plan, and the covered employees have been substantially harmed

by virtue of the employer’s actions.” Ackerman v. Warnaco, Inc., 

, 125 (3d

Cir. 1995). Mrs. Roarty argued that Tyco was guilty of both bad faith and active

concealment, but the District Court disagreed, noting that the Summary of Material

Modifications “did explain albeit fleetingly ‘that the BTA Plan would categorically no

longer cover an employee engaged in non-business travel.’” (App. 7.) The Court also

rejected the notion that not providing clear materials could equate to concealment, as that

“would come dangerously close to collapsing the ‘extraordinary circumstances’ inquiry.”

(App. 7.)   The Court also distinguished the case from Ackerman on its facts, and



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concluded that Mrs. Roarty had not demonstrated that “extraordinary circumstances”

actually were present.

       The District Court then addressed whether the LICNA’s denial of benefits under

the 2002 BTA Plan was an abuse of discretion given Mrs. Roarty’s contention that Mr.

Roarty’s benefits should be recognized because Mr. Roarty had been on a business trip.

The Court ruled that while the language of the policy (“on business for you, and in the

course of your business”) might be ambiguous, LICNA’s interpretation and application

were not unreasonable. The Court noted that the Plan explicitly stated that “coverage

will end when the covered person…makes a personal deviation” (App. 10) and opined

that it was reasonable for LICNA to conclude that the trip lost its business character when

Mr. Roarty remained with his vacationing family in Pittsburgh on August 4 after the

business aspect of the trip was clearly over. The District Court also rejected Mrs.

Roarty’s contention that LICNA’s investigation was incomplete.

       Lastly, the District Court considered Mrs. Roarty’s breach of fiduciary duty claim

against LICNA and held that she had not met the high standard of falsity and detrimental

reliance required.

       On appeal, Mrs. Roarty urges that the District Court refused to consider all the

facts demonstrating that Mr. Roarty was on a business trip, and the facts underlying her

breach of fiduciary duty claim, and had applied the wrong review standard in light of

LICNA’s conflict of interest.

       Regarding the review standard, the Supreme Court has recognized that a conflict

of interest can take on greater import and affect the abuse of discretion of standard if

                                              4
structural or historical facts would indicate that a less deferential standard is called for.

Metro Life Insurance v. Glenn, 

(2008). However, the District Court here

acknowledged the structural conflict, and noted that this was but one factor. We see no

basis to conclude that, here, the abuse of discretion standard should be adjusted in such a

way as to cause us to question LICNA’s denial based on any one or more factors.

       We find no error in the District Court’s assessment of the facts, regarding any of

Mrs. Roarty’s claims, nor do we find fault with its application of the abuse of discretion

standard regarding LICNA’s denial of benefits. The District Court’s opinion reflects a

thorough understanding of the record, and that serious consideration was given to Mrs.

Roarty’s arguments.

       Accordingly, we will affirm the order of the District Court.




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