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Click here for the full text of this decision FACTS:Edward P. Keszenheimer Jr., filed a pro se complaint for damages against Reliance Standard Life Insurance Co. and Weatherford International, pursuant in part to the Employee Retirement Income Security Act of 1974. He alleged that he was covered by a long-term disability policy provided by Reliance to employees of Dailey Petroleum Services Corp., the predecessor to Weatherford. He alleged that he had been unable to return to work since Nov. 13, 1994, due to the onset of vestibular neuronitis and had filed for and received benefits under the policy. Keszenheimer contended that Reliance had erroneously calculated his monthly benefits. He also asserted claims of breach of contract, breach of fiduciary duty, interference with protected rights, bad faith insurance and emotional distress. The district court dismissed the claims of breach of contract, bad faith and emotional distress, finding them pre-empted by ERISA. The court allowed Keszenheimer to proceed, however, on his claims for recovery of unpaid plan benefits and for breach of fiduciary duty, as such remedies were available under ERISA. The defendants moved for summary judgment on the remaining claims, arguing that Reliance correctly calculated Keszenheimer’s benefits. The defendants contended that the policy definition of “Covered Monthly Earnings,” upon which benefits were based, included only Keszenheimer’s base salary, not the additional payments, labeled “bonuses” by the defendants, that Keszenheimer received for offshore work. Keszenheimer opposed the motion, arguing that the additional payments � his offshore per diem and automobile allowance � were not “bonuses” but rather “commissions,” and thus should have been included by Reliance in the monthly benefit calculation. Although only the defendants had moved for summary judgment, at the hearing on that motion, the parties agreed that the district court would rule for or against either party based on the record. At the hearing, the district court identified the only issue before it as whether the monthly benefit amount paid to Keszenheimer was accurate. Resolution of this issue required the district court to interpret the policy provision that defines “Covered Monthly Earnings,” because the monthly long-term disability benefit was calculated under the policy to an amount equal to two thirds of Covered Monthly Earnings. The policy defined Covered Monthly Earnings as “the Insured’s monthly salary . . . on the day just before the date of Total Disability.” The policy specifically excluded “overtime pay, bonuses or any other special compensation” from the definition of covered monthly earnings but specifically included “commissions.” The policy did not define “monthly salary,” “bonuses,” “special compensation,” or “commissions.” While disagreeing over which components of Keszenheimer’s income should be included in his covered monthly earnings for purposes of calculating benefits under the policy, the parties stipulated that, on average, the aggregate of Keszenheimer’s regular salary, offshore per diem payments, and taxable automobile allowance amounted to $6,134.53 per month. They further stipulated that Dailey, Keszenheimer’s employer, referred to the per diem at different times as “incentive pay, incentive per day, day pay, deferred day pay, extra day pay, supplemental pay, on rig bonus, on rig days, bonus day rate, additional day pay, extra day pay, bonus, and offshore bonus.” The district court declined to exclude Keszenheimer’s per diem and taxable automobile allowance from Keszenheimer’s covered monthly earnings, finding that they were expected, usual, and guaranteed. The court subsequently granted summary judgment in favor of Keszenheimer and ordered that he receive $269,933.40 in unpaid benefits, plus post-judgment interest and costs. The defendants filed a timely notice of appeal. HOLDING:Reversed and rendered. Appellants first argued that Keszenheimer’s per diem and auto allowance were not included in the term “monthly salary.” Keszenheimer’s reliance on Wegner v. Standard Insurance Co., 129 F.3d 814 (5th Cir. 1997), was unavailing. Unlike Wegner’s fixed compensation, Keszenheimer’s per diem and automobile allowance varied based on the number of days he actually worked. Additionally, Keszenheimer’s earning statement accounted for his regular salary separate from the per diem and auto allowance. The court was persuaded that the district court’s contrary holding, that the per diem “was a part of the basic monthly salary,” was in error. An hourly wage or a series of payments for discrete contracted tasks could be equally expected, usual, and guaranteed. This was not enough to make it a “monthly salary.” The appellants argued that the per diem and auto allowance did not fall within the specifically included category of “commissions.” In Perugini-Christen v. Homestead Mortgage Co., 287 F.3d 624 (7th Cir. 2002), the 7th U.S. Circuit Court of Appeals confronted another Reliance policy containing a similar definition of covered monthly earnings. In that case the policy definition included both commissions and bonuses but made a distinction between the two when calculating benefits. The plaintiff preferred the payments at issue to be characterized as commissions; however, the court rejected plaintiff’s argument that “because [plaintiff] was contractually entitled to the branch profits, they cannot be considered bonuses,” agreeing instead with Reliance’s argument that because “[plaintiff's] employment agreement with Homestead characterized the branch profit payments as bonuses, [plaintiff] should be bound by the terms of that agreement.” The court held that “the branch profits are unlike ordinary commissions because although they are calculated as a percentage of the proceeds, they are not based on [plaintiff's] personal sales, but rather on the sales of the branch as a whole.” This supported the court’s conclusion that Keszenheimer’s per diem and automobile allowances did not fall within the term “commission” as used in the policy and as commonly understood. The district court erred in interpreting covered monthly earnings in the policy language to include Keszenheimer’s offshore per diem and automobile allowance payments. These forms of compensation were neither monthly salary nor commissions. Reliance’s calculation of Keszenheimer’s benefits was proper and, accordingly, the district court should have entered summary judgment in favor of appellants. OPINION:Per curiam; Reavley, Higginbotham, and DeMoss, JJ.

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