The full case caption appears at the end of this opinion.
BRISCOE, Circuit Judge. Plaintiffs, former employees of a corporate subsidiary of defendant Sunshine Mining & Refining Company, filed this actionunder the Employment Retirement Income Security Act (ERISA), 29 U.S.C. � 1001 et seq., seeking to enforce promises oflife-time insurance benefits made to them by their former employer as inducements to early retirements. Defendants appeal fromthe district court’s entry of partial summary judgment and its subsequent entry of judgment in favor of plaintiffs. Defendants alsoappeal the district court’s award of fees and costs to plaintiffs. Plaintiffs have filed two cross-appeals challenging variousaspects of the district court’s judgment, the amount of the fee award, and the district court’s refusal to grant plaintiffs’ post-trialmotion to enforce judgment. We exercise jurisdiction pursuant to 28 U.S.C. � 1291. As regards defendants’ appeal, we affirm.As regards plaintiffs’ cross-appeals, we affirm in all respects except for (1) the health insurance coverage issue, which wereverse and remand for entry of judgment consistent with this opinion, and (2) the fee award, which we reverse and remand tothe district court for further consideration. I. Plaintiffs Charles Deboard, William Wood, Lucille Kistler, and Knox Van Hoy are former employees of Woods PetroleumCorporation (Woods), a corporation formerly based in Oklahoma City, Oklahoma. On July 31, 1985, Woods merged with,and became a wholly owned subsidiary of, Sunshine Mining & Refining Company (Sunshine). As part of the merger (whichwas described in the record as more akin to a hostile takeover), Sunshine agreed not to terminate or modify any existingWoods’ employee welfare benefit plans for a period of ten years. On August 22, 1985, Woods distributed a memorandum to its employees explaining that, due to a “cyclical downturn” in the oiland gas industry, cost-cutting measures would be required by all four of Sunshine’s oil and gas subsidiaries, including Woods.The memorandum further explained that a task force had been formed to consider and evaluate various options to restructureSunshine’s oil and gas group. App. at 143. On September 11, 1985, Woods distributed a follow-up memorandum to itsemployees informing them, in pertinent part, of a “voluntary early retirement subsidy” intended by management to help reducecosts. Id. at 110. The memorandum indicated that “[e]ligible Woods’ personnel [could] elect to retire early with additionalvesting rights only during a ‘window period’ beginning September 18, 1985 and ending October 31, 1985.” Id. Thememorandum further indicated management was “working on and w[ould] finalize the details of a program which w[ould]provide an incentive to a wider group of people who m[ight] voluntarily elect to retire early with higher vesting rights,” and “[t]hedetails w[ould] be announced” the following week. Id. Within a week, Woods issued at least two memoranda outlining the details of the voluntary early retirement subsidy. Underwhat Woods termed a “Rule of 70″ qualification, any employee whose age and years of service plus five years equaled 70 orgreater was eligible to take advantage of the subsidy. [FOOTNOTE 1]
Eligible employees expressed reluctance to participate in the voluntaryearly retirement subsidy because of concern about the handling of post-retirement insurance benefits. On October 3, 1985, Woods sent letters to all employees eligible for the proposed Rule of 70 early retirement subsidy,including plaintiffs. [FOOTNOTE 2]
The letters stated: For informational purposes only, this letter serves to advise you and your spouse of insurance entitlements which you would beeligible to receive should you voluntarily elect to retire during the window period under the Rule of 70 plan (the “Plan”). First, the Plan provides that you and your eligible dependents would be entitled to receive health care under our current grouphospitalization plan with Massachusetts Mutual, fully paid for at Woods Petroleum Corporation’s expense until the time of yourdeath. At that time, the hospitalization insurance would continue in full force for one year from the anniversary date of theretiree’s death for the retiree’s spouse at no cost to your spouse. However, within the year period from the date of the retiree’sdeath, should the spouse remarry, all coverage would cease immediately. After the year passes, the spouse may elect toconvert to a private plan with Massachusetts Mutual with the cost being borne 100% by the spouse. During your lifetime, youwould simply submit your claims for reimbursement to the Company (via the Personnel Department) as you do now. Onceconverted to a private plan, your premiums and claims would be handled direct with the insurance carrier instead of WoodsPetroleum Corporation. Secondly, you would be allowed to continue participation in the Group Dental Plan at company expense with the sameprocedure for claim reimbursement as indicated above. Once you are deceased, however, there would be no further benefits orautomatic rights of conversion to a private plan for your dependents in the Dental Plan. Third, as a part of our Group Plan coverage, you would also be covered for $10,000 life insurance on you and $5,000 on yourspouse with Security Connecticut, with the premiums for these coverages also paid by the Company. Something that you do need to keep in mind, once you become age 65, you would need to submit your claims first toMedicare, as it would then become the primary carrier. You would then submit any amounts not paid by Medicare toMassachusetts Mutual as the secondary carrier. (Be sure that you apply for Medicare upon turning age 65.) If there is anything else that we can do to assist you with your pre-retirement planning, do not hesitate to call upon us. Id. at 116-17. Based upon the representations in the October 3 letters, plaintiffs Deboard, Wood, and Kistler voluntarilyretired from the company effective October 31, 1985. These plaintiffs and their spouses subsequently received medical, dental,and life insurance benefits, at company expense, through July 1995. On July 14, 1986, Woods distributed a memo to employees and retirees outlining various modifications to the health, life, anddental insurance programs. Id. at 1326. In particular, the memo stated employees would “be required to contribute to thepremium payments for dependent coverage only, at a rate of $20.00 per month beginning August 1, 1986.” Id. On July 18,1986, Woods distributed a memo to all retirees stating, in pertinent part, as follows: The correspondence you received last week describing the changes to our group health, life, and dental plans was forinformational purposes to keep you appraised (sic) of the changes that will be impacting on you as well as our activeemployees. The item . . . which described the requirement for employees to begin contributing $20 per month for family coverage is notapplicable to our current retirees; but, may affect future retirees. Id. at 1329. In the fall of 1986, Woods offered a second voluntary retirement subsidy to those employees who satisfied the “Rule of 70.”The second subsidy differed slightly in that no spousal life insurance was offered, and eligible retirees had to pay $20 per monthfor dependent health care coverage (consistent with the August 1, 1986, changes to the health insurance plan for employees).Plaintiff Van Hoy inquired about the second subsidy and was informed by Woods’ personnel director that, with the exceptionof the two noted differences, the terms and conditions of the subsidy were identical to those described in the October 3, 1985,letters. Plaintiff Van Hoy chose to participate in the second subsidy and retired effective December 31, 1986. Van Hoy and hisspouse subsequently received benefits, at company expense (save for the $20 monthly co-pay on Mrs. Van Hoy’s medicalinsurance premiums), through July 1995. Woods was the plan sponsor until July 31, 1986. Effective August 1, 1986, Sunshine adopted and consolidated medicalcoverage for itself and its subsidiaries, including Woods, into group policies issued by Massachusetts Mutual Life InsuranceCompany (which had previously issued group policies to Woods for its Welfare Plan). Thereafter, Sunshine effectively acted asthe administrator for all of the plans at issue. On April 26, 1995, Woods (which had since been renamed Woods Research & Development Corporation), sent letters toplaintiffs and their spouses stating: This letter is to inform you of changes to your Woods retiree insurance coverage effective August 1, 1995. As you know,Sunshine Mining Company (Sunshine) acquired Woods Petroleum Corporation on July 31, 1985. Pursuant to Section 6.16 ofthe Agreement and Plan of Reorganization, Sunshine agreed not to terminate any employee benefit plans (including health andwelfare plans) for a period of 10 years. Sunshine has elected not to terminate your retiree medical insurance provided you paya premium equal to the cost to continue your coverage after July 31, 1995 (the expiration of the 10 year period). Your dentalinsurance and retiree and dependent life insurance coverage will cease as of August 1, 1995. In 1994, due to the prolonged slump in silver prices, the continuing escalation in medical insurance cost and the need to reduceproduction and overhead costs, Sunshine eliminated retiree medical and dental coverage for its existing hourly and staffworkforce and certain retired hourly employees. Sunshine is offering you the option of continuing your coverage by paying amonthly premium of $499.56 for you and your spouse. This premium will be adjusted annually to reflect any changes inSunshine’s cost to provide this coverage or changes to medical insurance provided. Sunshine may amend or terminate thiscoverage upon 60 days written notice to you. To continue your medical insurance coverage, you must return the enclosed election form by July 31, 1995 to [Sunshine]. Id. at 151. In a letter to Sunshine dated May 15, 1995, plaintiff Wood questioned the benefit termination decision. Wood attached a copyof his October 3, 1985, letter from Woods, and stated he agreed to accept early retirement under the Rule of 70 Plan onlybecause of Woods’ offer to provide him and his spouse with lifetime health, dental, and life insurance benefits. On May 30,1995, Woods responded to Wood with the following letter: The Rule of 70 Plan that you retired under in 1985 was offered by Woods Petroleum Corporation (“Woods”) and was onlyavailable to Woods employees who were participants in the Woods Petroleum Corporation Employee Pension Plan. Yourretiree life and medical benefits were also provided pursuant to a Woods policy. On July 31, 1995, Sunshine Mining & RefiningCompany’s obligation to continue Woods’ employee benefit plans ceases. Id. at 156. Plaintiffs Deboard and Wood hired counsel, and by letter dated June 29, 1995, opposed Sunshine’s decision to terminate theirinsurance coverage under the Rule of 70 Plan. The letter requested that Sunshine provide Deboard and Wood with variousdocuments concerning the plans, provide them with a statement of specific reasons for termination of their insurance coverage,notify them of any additional information necessary to decide the issue, and provide or disclose any other procedures withwhich they should comply. Woods responded on July 11, 1995, by providing copies of various documents pertaining to theinsurance plans at issue, but it did not alter or further explain the decision to discontinue payment of insurance premiums onbehalf of plaintiffs. Plaintiffs filed suit against defendants on July 25, 1995, seeking declaratory and injunctive relief, as well as compensatorydamages. On March 13, 1996, plaintiffs moved for summary judgment. Defendants responded with a cross-motion forsummary judgment. On July 22, 1996, the district court granted plaintiffs’ motion in part, denied it in part, and denieddefendants’ motion in its entirety. In pertinent part, the district court concluded “there [wa]s no genuine issue of material factregarding whether the ‘Rule of 70 Plan’ existed as a separate plan under ERISA,” but that “genuine issues of material factexist[ed] as to whether Defendants either misrepresented the duration of benefits under the plan, or improperly amended theplan.” Id. at 670. The district court further concluded defendants violated ERISA by failing to provide plaintiffs Deboard andWood with copies of the merger agreement between Sunshine and Woods, which defendants claimed gave them authority todiscontinue the payment of insurance premiums on behalf of plaintiffs. Id. The remaining aspects of the case proceeded to trial and the district court orally entered its findings of fact and conclusions oflaw on October 31, 1996. The district court found in favor of plaintiffs on their claims of breach of fiduciary duty and forentitlement to continuing payment of benefit insurance premiums by defendants. Id. at 1291. The court ordered that plaintiffs”be restored to their status as to company-defrayed health insurance premiums as that status was in effect on the day after theirrespective retirements.” Id. at 1299. With respect to dental and life insurance coverage, the district court found “the OctoberThree plan [wa]s not explicit about the lifetime aspect of . . . company-paid premiums,” and concluded plaintiffs were entitled tono remedy with respect to those plans. Id. The district court did not impose any penalties on defendants for failing to timelyprovide plaintiffs Deboard and Wood with copies of the merger agreement. Plaintiffs moved for fees and costs, and defendant filed a cross-motion for partial recovery of fees and costs. The district courtawarded attorney fees in the amount of $95,795.44 to plaintiffs. II. Defendants’ appeal Appellate jurisdiction/timeliness of appeal Plaintiffs have moved to dismiss a portion of defendants’ appeal for lack of jurisdiction. According to plaintiffs, defendants hadthirty days from the district court’s February 19, 1997, resolution of defendants’ cross-motion for fees and costs to appeal theunderlying judgment on the merits. Because defendants waited until after the district court’s resolution of plaintiffs’ fee request,plaintiffs contend defendants’ notice of appeal is effective only as to the portion of the judgment pertaining to plaintiffs’ feerequest (i.e., the only portion of the judgment entered within thirty days of the notice of appeal). Rule 4 of the Federal Rules of Appellate Procedure sets forth “mandatory and jurisdictional” time requirements for appealing ajudgment in a civil case. Browder v. Director, Dep’t of Corrections of Illinois, 434 U.S. 257, 264 (1978). In pertinent part,Rule 4 provides [FOOTNOTE 3]
: (a)(1) Except as provided in paragraph (a)(4) of this Rule, in a civil case in which an appeal is permitted by law as of right froma district court to a court of appeals the notice of appeal required by Rule 3 must be filed with the clerk of the district courtwithin 30 days after the entry of the judgment or order appealed from . . . . * * * (4) If any party files a timely motion of a type specified immediately below, the time for appeal for all parties runs from the entryof the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Federal Rules ofCivil Procedure: * * * (D) for attorney’s fees under Rule 54 if a district court under Rule 58 extends the time for appeal; [or] (E) for a new trial under Rule 59 . . . . As referenced in Rule 4, Rule 58 of the Federal Rules of Civil Procedure allows a district court, before a notice of appeal hasbeen filed, to “order that [a] motion [for taxation of costs and fees] have the same effect under Rule 4(a)(4) of the FederalRules of Appellate Procedure as a timely motion under Rule 59.” Id. Here, defendants did not rely on the basic thirty-days-from-entry-of-judgment “window” provided by Federal Rule ofAppellate Procedure 4(a)(1), which would have given them thirty days from the entry of judgment on January 6, 1997, or untilFebruary 6, 1997, to file their notice of appeal. Instead, defendants sought to extend the time for filing their notice of appeal bymoving the district court to order, pursuant to Federal Rule of Civil Procedure 58, that their cross-motion for fees and costs”have the same effect under Rule 4(a)(4) of the Federal Rules of Appellate Procedure as a timely-filed motion under Rule 59.”App. at 887. Because the district court granted defendants’ motion, the thirty-day period for filing a notice of appeal did notbegin to run until “the entry of the order disposing of” defendants’ cross-motion for fees and costs. [FOOTNOTE 4]
Fed. R. App. P. 4(a)(4). The timeliness of defendants’ appeal turns on when the district court’s order disposing of their cross-motion for fees and costswas “entered” for purposes of Rule 4(a)(4). Federal Rule of Appellate Procedure 4(a)(7) provides that an “order is enteredwithin the meaning of . . . Rule 4(a) when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of CivilProcedure.” Fed. R. App. P. 4(a)(7). In turn, Federal Rule of Civil Procedure 58 provides, in pertinent part, that “[e]veryjudgment shall be set forth on a separate document,” and “is effective only when so set forth and when entered as provided inRule 79(a).” Fed. R. Civ. P. 58; see Bankers Trust Co. v. Mallis, 435 U.S. 381, 384 (1978) (noting purpose of Rule 58 is toeliminate confusion as to exactly when the time for filing a notice of appeal begins to run); Clough v. Rush, 959 F.2d 182,184-85 (10th Cir. 1992) (discussing history and purpose of Rule 58). Although the district court issued an order on February 19, 1997, denying defendants’ cross-motion for fees, that order did notmeet the requirements of Rule 58. In particular, the order was six pages long and contained legal analysis and reasoning. SeeClough, 959 F.2d at 185 (concluding 15-page order containing legal analysis and reasoning did not satisfy Rule 58requirements). Thus, the order “could not, standing alone, trigger the appeal process.” Id. In reaching this conclusion, werecognize that many courts have held a separate document is unnecessary in situations where a district court issues an orderdenying a Rule 59 or Rule 60(b) motion. See Marre v. United States, 38 F.3d 823, 825 (5th Cir. 1994); Wright v. PreferredResearch, Inc., 937 F.2d 1556, 1560 (11th Cir. 1991); Hollywood v. City of Santa Maria, 886 F.2d 1228, 1231 (9th Cir.1989); Charles v. Daley, 799 F.2d 343, 347-48 (7th Cir. 1986). But see Fiore v. Washington Co. Comm. Mental Health Ctr.,960 F.2d 229, 234-35 (1st Cir. 1992). Without deciding that particular issue, we conclude that, because motions for attorneyfees are separate from and collateral to any decision on the merits, see White v. New Hampshire, 455 U.S. 445, 451-52(1982), they should be accorded the same dignity under Rule 58 as judgments on the merits. Just as a judgment on the meritsmust always be accompanied by a separate document, so should a district court’s order denying or granting a motion for fees. Having examined the record on appeal, it is our conclusion that Rule 58′s separate document requirement was not actuallysatisfied in this case. Although the district court issued a one-page judgment on June 9, 1997, that document was narrowlyconfined to the granting of plaintiffs’ fee request. Thus, the district court’s denial of defendants’ cross-motion for fees was not”entered” in accordance with Rule 58, and the thirty-day time period for appealing that denial and the underlying judgmentnever began to run. Nevertheless, since there is “no question . . . as to the finality of the district court’s decision,” either on themerits or as to the defendants’ cross-motion for fees, we may properly exercise jurisdiction over all of the issues raised indefendants’ appeal pursuant to 28 U.S.C.� 1291. Bankers Trust, 435 U.S. at 382-88; Burlington Northern R.R. Co. v.Huddleston, 94 F.3d 1413, 1416 n.3 (10th Cir. 1996). Creation of new employee welfare benefit plan During the course of the proceedings, the district court granted partial summary judgment in favor of plaintiffs, concluding theuncontroverted facts demonstrated the October 3, 1985, letters created a new ERISA plan, separate from the employeewelfare benefit plan already in existence at Woods. On appeal, defendants challenge this ruling, contending “Woods did notintend to create a new and separate ERISA plan via the October 3rd letter, but merely described in the October 3rd letter thevery same benefits to which Plaintiffs and others similarly situated were entitled under” Woods’ existing medical insurance plan.Defs.’ Opening Br., at 15. According to defendants, the existing medical plan contained a clause affording Woods the right toamend or terminate the plan at any point. Based upon this alleged clause, defendants contend plaintiffs had no vested rights inlifetime insurance benefits, leaving defendants free to subsequently alter the plan and require plaintiffs to pay their own insurancepremiums. We review a district court’s grant of summary judgment de novo, applying the same legal standard used by the district courtpursuant to Federal Rule of Civil Procedure 56(c). See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10thCir.1998). We also apply a de novo standard in determining whether ERISA governs a particular insurance policy or set ofinsurance benefits. Gaylor v. John Hancock Mut. Life Ins. Co., 112 F.3d 460, 463 (10th Cir. 1997). Section 1132(a) of ERISA provides, in relevant part, that a participant or beneficiary of a “plan” may bring suit “to recoverbenefits due to him under the terms of his plan . . . .” 29 U.S.C. � 1132(a)(1)(B). As used in ERISA, the term “plan” includes”employee welfare benefit plans,” 29 U.S.C. � 1002(3), which are plans “established or . . . maintained for the purpose ofproviding . . . medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, [or] death .. . .” 29 U.S.C. � 1002(1). Defendants do not dispute that plaintiffs’ retirement insurance benefits are provided under anemployee welfare benefit plan governed by ERISA. Instead, defendants dispute the district court’s conclusion that the October3, 1995, letters created a new employee welfare benefit plan, separate from the one that already existed at Woods andprovided benefits to employees and retirees. It is without question that an employer can have more than one employee welfare benefit plan for purposes of ERISA. See,e.g., McMahon v. Digital Equip. Corp., 162 F.3d 28, 33 (1st Cir. 1998) (employer’s short-term disability benefits programincluded three plans); Silverman v. Mut. Benefit Life Ins. Co., 138 F.3d 98, 100 n.1 (2d Cir.) (employer established separateplans for union and non-union employees), cert. denied, 119 S. Ct. 178 (1998); Smith v. Ameritech, 129 F.3d 857, 860 (6thCir. 1997) (employer offered two plans which provided disability benefits to employees); Weir v. Federal Asset DispositionAss’n, 123 F.3d 281, 284-86 (5th Cir. 1997) (employer adopted three severance plans that provided benefits independent ofeach other). In Chiles v. Ceridian Corp., 95 F.3d 1505 (10th Cir. 1996), we were asked to determine whether four benefitplan documents should be treated as creating four separate plans or one comprehensive plan for purposes of ERISA. Althoughwe cited various factors relevant to the determination in that case, we emphasized the ultimate question was whether theevidence, considered as a whole, evinced an intent on the part of the company to establish one plan or four plans. Id. at 1511. Applying Chiles in this case, we conclude the uncontroverted evidence submitted by the parties in connection with theirsummary judgment motions demonstrates Woods did, in fact, intend to create a new employee welfare benefit plan for thosepersons who took advantage of the voluntary early retirement subsidy. Prior to offering the voluntary early retirement subsidy,Woods had in place an employee welfare benefit plan offering health, dental, and life insurance coverage to its employees.Notably, the Summary Plan Description (SPD) for that plan was poorly drafted. Although the SPD stated that “health anddental benefits are paid for mainly by your employer,” App. at 274, it said nothing about the extent to which Woods wouldcover those premiums, nor did it say anything about lifetime insurance benefits to employees and/or retirees. There is nosupport for defendants’ assertion that Woods’ existing employee welfare benefit plan allowed for the insurance benefits now atissue in this case. In accordance with the terms of the October 3, 1985, letters, we conclude Woods intended to create a newbenefit plan for a specific group of employees, i.e., those employees who agreed to participate in the voluntary early retirementsubsidy. Although defendants emphasize the letters opened with the phrase “[f]or informational purposes only,” the language ofthe letters clearly indicates an intent on the part of Woods to provide plaintiffs with lifetime health insurance benefits, andthereby to create a new limited benefit plan for plaintiffs. Moreover, the uncontroverted evidence indicates it was precisely thelifetime guarantee of insurance benefits that induced plaintiffs to participate in the voluntary early retirement subsidy. In reaching this conclusion, we note the October 3 letters satisfied the minimum requirements for establishing an ERISA plan.Not only did the letters specify a funding mechanism for the plan (i.e., that Woods would pay the health insurance premiums),they also allocated ongoing operational and administrative responsibilities to the employer. See Fort Halifax Packing Co. v.Coyne, 482 U.S. 1, 12 (1987). In particular, Woods was required under the plan to regularly pay the health, dental, and lifeinsurance premiums for plaintiffs, and was further required to allocate company resources to do so. Thus, in the words of theSupreme Court, the plan placed “periodic demands” on Woods’ assets, “creat[ing] a need for financial coordination andcontrol.” Id. In addition to the periodic demands on Woods’ assets, the plan also required Woods to keep track of when eachretiree died because the plan expressly provided for more limited survival benefits for surviving spouses of retirees. Aside fromestablishing an administrative scheme, the documents sufficiently described the intended benefits (lifetime health insurancebenefits, etc.), the intended class of beneficiaries (persons participating in the voluntary early retirement subsidy), and theprocedures for receiving benefits. Siemon v. AT&T Corp., 117 F.3d 1173, 1178 (10th Cir. 1997). Finally, “in light of all thesurrounding facts and circumstances, a reasonable employee would [have] perceive[d] an ongoing commitment by theemployer to provide employee benefits.” Belanger v. Wyman-Gordon Co., 71 F.3d 451, 455 (1st Cir. 1995). We note other circuits have found the existence of ERISA plans under similar circumstances. For example, in Williams v.Wright, 927 F.2d 1540 (11th Cir. 1991), the court held a letter to a single employee outlining pension and insurance benefitsthe employee would receive upon retirement created both an employee pension benefit plan and an employee welfare benefitplan for purposes of ERISA. Even though (as here) the payment of benefits occurred out of the employer’s general funds ratherthan a separate trust, the court held the employer could not evade the requirements of ERISA where the facts otherwisedemonstrated the existence of a plan. Id. at 1544. Similarly, in Cvelbar v. CBI Illinois Inc., 106 F.3d 1368 (7th Cir. 1997), thecourt concluded a written agreement entered into by plaintiff, a management employee, and defendant, the employer/bank,constituted an ERISA plan because it provided for continuing severance benefits upon plaintiff’s termination. Id. at 1375-79. In sum, we agree with the district court’s conclusion that the October 3 letters created a new employee welfare benefit plan forpurposes of ERISA. [FOOTNOTE 5]
See generally Elmore v. Cone Mills Corp., 23 F.3d 855, 861 (4th Cir. 1994) (holding an “informal planmay exist independent of, and in addition to, a formal plan as long as the informal plan meets” all of the necessary requirementsunder ERISA). Terms of the new employee welfare benefit plan As a fall-back argument, defendants contend even if the October 3 letters created a new employee welfare benefit plan forpurposes of ERISA, the new plan effectively incorporated a clause in the existing plan allowing Woods the right to amend orterminate at any time. For reasons outlined below, we find it unnecessary to conclusively determine whether that clause wasincorporated into the new plan because, even if it was, the clause is ambiguous and does not provide Woods with the right torevoke its promise to pay plaintiffs’ health insurance premiums. Although ERISA pension plans are subject to mandatory vesting requirements, see 29 U.S.C. � 1053, ERISA employeewelfare benefit plans are not subject to such standards, and employers are generally free to amend or terminate these plansunilaterally (assuming the plan provides for this right). See Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995).Nevertheless, an employer and employee may contract for vested post-employment welfare benefits. See Chiles, 95 F.3d at1510; In re White Farm Equip. Co., 788 F.2d 1186, 1193 (6th Cir. 1986). In deciding whether an ERISA employee welfare benefit plan provides for vested benefits, we apply general principles ofcontract construction. In particular, “the Supreme Court has directed us to interpret an ERISA plan like any contract, byexamining its language and determining the intent of the parties to the contract.” Capital Cities/ABC, Inc. v. Ratcliff, 141 F.3d1405, 1411 (10th Cir.) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 112-13 (1989)), cert. denied, 525 U.S.873 (1998). If we determine “the plan language is ambiguous, we may look at extrinsic evidence.” Id. Here, Massachusetts Mutual Life Insurance Company, the insurer for Woods’ employee welfare benefit plan, issued an SPD inMarch 1985. The first page of the SPD (after the cover page) contains three separate headed paragraphs: INTRODUCTION This booklet is the Summary Plan Description of your employee benefit plan. This summary tells how you may become andremain a plan member. Your health and dental insurance benefits are paid for mainly by your employer. Massachusetts MutualLife Insurance Company pays certain amounts above what your employer pays, and has full responsibility for claim fundingupon termination of the group policy. The plan’s benefits are described, including any limitations or exclusions that may affectyour right to benefits. The procedure to claim plan benefits is also discussed. Plan Sponsor and Plan Administrator Woods Petroleum Corporation 3817 Northwest Expressway Suite 700 Oklahoma City, OK The plan provides medical and dental expense benefits. Should you have any question about the plan, contact the planadministrator’s office. They will explain the benefit plan to you and help you present any claim for benefits. The Insurer The plan benefits are provided through a group insurance policy. That policy was issued to the plan sponsor by MassachusettsMutual Life Insurance Company, called the “insurer” in this summary. Though the plan is intended to continue, it can be changedor terminated without the consent of the plan members. Your insurance policy rights, in such an event, are shown in thissummary. If you wish to review the complete policy, please see the plan sponsor. App. at 274. [FOOTNOTE 6]
Although defendants contend this language clearly provided them with the right to alter or terminate plaintiffs’ benefits at anytime, we disagree. We note that the only reference to changing or terminating the plan is contained under the heading “TheInsurer,” which refers exclusively to Massachusetts Mutual. In our view, this language and its placement were simply intendedto emphasize that Massachusetts Mutual retained the right to terminate or modify the group policy purchased by Woods for itsemployees. Had the parties intended for Woods, the plan sponsor, to be able to modify or terminate the plan, we believe theSPD should have said so under the heading “Plan Sponsor and Plan Administrator” (or somewhere other than under theheading “The Insurer”). [FOOTNOTE 7]
Given the ambiguities in the clause cited by defendants, we turn to extrinsic evidence of the parties’ intent to create vestedinsurance benefits. For many of the reasons already discussed, we conclude the terms of the October 3 letters demonstrate anintent on the part of defendants to provide plaintiffs with vested insurance benefits. In particular, the letters unequivocallyindicated persons taking advantage of the early retirement plan would be provided with health insurance for their lifetimes, atcompany expense. Although the letters indicated they were for “informational purposes only,” nowhere was there a reference tothe SPD, nor was there any other indication that the benefits described in the letters could be unilaterally altered by thecompany at a later date. We conclude the conduct of the parties also demonstrates an intent to create vested insurancebenefits. For example, in July 1986, defendants altered the terms of its plan for existing employees, requiring employees to pay$20 per month for dependent health insurance coverage. Notwithstanding the change to the existing plan, defendants made noattempt to alter the new plan and continued to provide plaintiffs with dependent coverage at company expense. Indeed, fornearly ten years, defendants provided plaintiffs and their spouses with health insurance coverage at company expense. Finally,when defendants attempted to alter the plan in 1995, they did not purport to rely on the above-cited clause in the SPD, or onany other supposed right under ERISA to unilaterally modify the new plan. Instead, defendants relied on a section of the mergeragreement between Woods and Sunshine, pursuant to which Sunshine agreed not to terminate or modify, for a period of tenyears, any existing Woods’ employee welfare benefit plans. In conclusion, we agree with the district court that defendants intended, at the time they offered early retirement to plaintiffs, tocreate vested rights to lifetime health insurance coverage. Fee award Although defendants have also challenged the district court’s award of fees in favor of plaintiffs, they argue only that the feeaward should be reversed in the event the underlying judgment in favor of plaintiffs is reversed. Because we find no merit todefendants’ appeal, we likewise reject their attack on the fee award. Plaintiffs’ cross-appeals Extent of coverage under new plan Plaintiffs contend the district court erred in determining the relief to which they were entitled under the new plan. In particular,plaintiffs contend the district court erred in failing to order defendants to provide them with the same level and type of healthinsurance benefits promised them at the time of their retirement (plaintiffs claim defendants are now attempting to provide themwith the cheapest health insurance they can purchase). Plaintiffs also contend “[i]t is manifest from the language of the October1985 letters that dental coverage and life insurance coverage would be provided for the lifetimes of the Rule of 70 Planparticipants,” and “[t]here is no basis in the record to support the district court’s refusal to reinstate these coverages along withthe medical insurance coverage.” Pls.’ Opening Br., at 37. “A court must review [a] decision denying benefits under an ERISA plan de novo ‘unless the benefit plan gives the administratoror fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.’” Capital Cities, 141F.3d at 1408 (quoting Firestone, 489 U.S. at 115). Because the documents relating to the new plan do not confer discretionaryauthority on defendants to determine entitlement to benefits, the district court properly applied a de novo standard ininterpreting the plan. See id. In turn, we apply a de novo standard of review to “[q]uestions of law, such as a court’sinterpretation of an ERISA plan when the plan’s terms are clear and there is no grant of interpretive authority to a planadministrator � or even the preliminary determination whether an ERISA’s plan language is silent or ambiguous . . . .”Sunbeam-Oster Co. Group Benefits Plan v. Whitehurst, 102 F.3d 1368, 1373 (5th Cir. 1996). Any factual findings made bythe district court, “such as the intent of the parties regarding an ERISA plan, are reviewed for clear error.” Id. Turning first to the dental and life insurance coverage, the October 3 letters provided plaintiffs would be “allowed to continueparticipation in the Group Dental Plan at company expense,” and “would also be covered for $10,000 life insurance on[themselves] and $5,000 on [their] spouse[s] with Security Connecticut, with the premiums for these coverages also paid bythe Company.” App. at 116. Nothing in this language suggests an intent on the part of defendants to create vested rights indental and life insurance coverage. We conclude the district court did not err in refusing to grant relief to plaintiffs on their claimsfor dental and life insurance coverage. The more difficult issue is what type of health insurance coverage was contemplated by the new plan. The October 3 lettersprovided: [T]he Plan provides that you and your eligible dependents would be entitled to receive health care under [Woods'] currentgroup hospitalization plan with Massachusetts Mutual, fully paid for at Woods Petroleum Corporation’s expense until the timeof your death. At that time, the hospitalization insurance would continue in full force for one year from the anniversary date ofthe retiree’s death for the retiree’s spouse at no cost to your spouse. However, within the year period from the date of theretiree’s death, should the spouse remarry, all coverage would cease immediately. After the year passes, the spouse may electto convert to a private plan with Massachusetts Mutual with the cost being borne 100% by the spouse. During your lifetime,you would simply submit your claims for reimbursement to the Company (via the Personnel Department) as you do now. Onceconverted to a private plan, your premiums and claims would be handled direct with the insurance carrier instead of WoodsPetroleum Corporation. * * * Something that you do need to keep in mind, once you become age 65, you would need to submit your claims first toMedicare, as it would then become the primary carrier. You would then submit any amounts not paid by Medicare toMassachusetts Mutual as the secondary carrier. (Be sure that you apply for Medicare upon turning age 65.) App. at 116-17. The district court implicitly concluded the letters were ambiguous regarding the extent of health insurancecoverage to be provided to plaintiffs. It then found, after presumably reviewing the extrinsic evidence, that the parties did notintend a particular type or level of coverage. After carefully examining the appellate record, we conclude the district court erred in finding that the parties intended nothingwith respect to the extent or type of health insurance coverage to be afforded plaintiffs under the Rule of 70 plan. The October3 letters specifically indicated that plaintiffs would be provided the same health insurance benefits as Woods’ currentemployees. Further, the extrinsic evidence presented by the parties clearly and unequivocally indicated that, for a period ofapproximately ten years following implementation of the Rule of 70 plan, Sunshine afforded plaintiffs a level of health insurancecoverage consistent with that provided to Sunshine’s current employees. Thus, both the language of the October 3 letters andthe parties’ conduct flies directly in the face of the district court’s finding. Even assuming, arguendo, the evidence was equivocalregarding the parties’ intent on this point, we believe the ambiguity should have been construed in favor of plaintiffs. See, e.g.,Morton v. Smith, 91 F.3d 867, 871 n.1 (7th Cir. 1996) (“The federal common law of ERISA . . . provide[s] that ambiguousterms in benefit plans should be construed in favor of beneficiaries” where there is “an absence of conclusive evidence aboutintent.”). We conclude plaintiffs are entitled to the same type of coverage, at defendants’ expense, as provided to defendants’ currentsalaried employees. [FOOTNOTE 8]
If defendants were to change coverage for their current employers, such changes would also affectplaintiffs. Defendants could not, however, place plaintiffs in a low-cost insurance plan while simultaneously providing a higherlevel of service and benefits to their current employees. Given our interpretation of the new plan, it is necessary to reverse the district court’s judgment on this point and remand thecase to the district court for entry of judgment consistent with this opinion. District court’s refusal to impose penalties on defendants In ruling on the parties’ cross-motions for summary judgment, the district court concluded defendants violated � 1024(b)(4) ofERISA and were subject to penalties for failing to provide plaintiffs Wood and Deboard, upon request, with copies of the 1985merger agreement between Woods and Sunshine (which defendants had originally relied on to justify their decision todiscontinue paying plaintiffs’ insurance premiums). App. at 669-70. However, the district court ordered that the “[a]mount ofpenalty, if any, is left to trial.” Id. at 670. At trial, plaintiffs introduced an exhibit (Exhibit 54) outlining the maximum penaltiesallowable under 29 U.S.C. � 1132(c) for the violation found by the district court, as well as other similar violations not cited bythe district court. Supp. App. at 264-66. According to that exhibit, the district court had authority to award $4,643,200 inpenalties. Id. at 266. At the conclusion of the bench trial, the district court decided not to impose any penalties on defendantsfor their violation of ERISA’s document disclosure requirements. In support of its decision, the district court concluded (1)plaintiffs’ calculation of entitlement to penalties was “padded,” “absolutely preposterous,” and not filed in good faith; (2) plaintiffsfiled this case shortly after requesting the merger agreement, had access to discovery under the Federal Rules of CivilProcedure, and could have obtained the agreement that way; (3) “there was no sinister intent behind” defendants’ response,”nor any credible showing . . . of any cover-up about the company’s reasons for taking the action[s]” at issue; and (4) anypurpose to be served by invoking the disclosure rules was subsumed in the disposition of this case. Id. at 1299-1301. Plaintiffs challenge the district court’s refusal to grant any monetary penalties. In particular, plaintiffs contend the district courterred in relying on the absence of prejudice to plaintiffs, and the lack of bad faith on the part of defendants in failing to providethe requested documents. Plaintiffs further argue that even if those factors were relevant, the evidence demonstrates both thatthey were prejudiced by defendants’ failure to produce the requested merger agreement, and that defendants’ failure was aproduct of bad faith. As for Exhibit 54, plaintiffs contend it was not “padded,” but was an outline of the maximum penalties thedistrict court had authority to impose. Finally, plaintiffs argue the district court misunderstood the legislative purposes of �1132(c), i.e., “to avoid rather than promote litigation and its attendant discovery battles.” Pls.’ Opening Br., at 42. A district court’s assessment of, or refusal to assess, penalties under 29 U.S.C. � 1132(c) is reviewed for an abuse ofdiscretion. See 29 U.S.C. � 1132(c)(1)(B) (specifically emphasizing that district court, “in its discretion,” may order statutorypenalties); Wilcott v. Matlack, Inc., 64 F.3d 1458, 1461 (10th Cir. 1995). Under this standard, we will reverse only if we havea definite and firm conviction that the district court made a clear error of judgment or exceeded the bounds of permissiblechoice in the circumstances. Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994). Reviewing the record on appeal, we conclude the district court did not abuse its discretion in choosing not to impose penaltieson defendants. Although plaintiffs are correct that neither prejudice nor bad faith is required for a district court to imposepenalties under 29 U.S.C. � 1132(c), the presence or absence of these factors can certainly be taken into account by a districtcourt in deciding whether to exercise its discretion and impose a penalty. See Moothart, 21 F.3d at 1506. Thus, the districtcourt did not err in relying on these factors. Moreover, the district court’s findings concerning prejudice and bad faith are notclearly erroneous. As for the district court’s characterization of Exhibit 54, there is support in the record for the district court’sconclusion. As noted, the district court concluded defendants failed to provide a single document (the merger agreement), yetExhibit 54 referred to numerous other documents that defendants allegedly failed to produce. Finally, we find no merit toplaintiffs’ assertion that the district court failed to appreciate the purpose of penalties under � 1132(c). Amount of fee award Plaintiffs contend the district court erred in establishing the amount of the fee award. More specifically, plaintiffs contend theyshould have been allowed to recover fees reasonably expended in pursuit of all their claims, not just the claims on which theyprevailed at trial. Under ERISA, a district court “in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29U.S.C. � 1132(g)(1). In deciding whether to exercise its discretion and award fees, a district court should consider thefollowing nonexclusive list of factors: (1) the degree of the offending party’s culpability or bad faith; (2) the degree of the abilityof the offending party to satisfy an award of attorney fees; (3) whether or not an award of attorney fees against the offendingparty would deter other persons acting under similar circumstances; (4) the amount of benefit conferred on members of the planas a whole; and (5) the relative merits of the parties’ positions. Pratt v. Petroleum Prod. Management Inc. Employee Sav. Plan& Trust, 920 F.2d 651, 664 (10th Cir. 1990). We review a district court’s fee decision for an abuse of discretion. Thorpe v.Retirement Plan of the Pillsbury Co., 80 F.3d 439, 445 (10th Cir. 1996). In support of their motion for fees and costs, plaintiffs submitted an affidavit from counsel requesting $158,145.75 in fees. App.at 778. The district court granted plaintiffs’ motion in part, concluding “plaintiffs should be awarded a reasonable attorney’s feefor their success in gaining reinstatement of health insurance benefits for participants and beneficiaries of the Rule of 70 Plan.”Id. at 895. The district court agreed with defendants, however, that it “should exclude time spent by plaintiffs’ counsel onpatently meritless issues.” Id. at 897. In particular, the district court concluded plaintiffs should not recover fees for their “questfor a lump-sum payment characterized as ‘restitutionary recovery of future benefits’ [which] was obviously without merit,” ortheir “quest for an assessment of exorbitant penalties under 29 U.S.C. � 1132(c)(1).” Id. The district court further concludedthe amount sought by plaintiffs was unreasonable because they (1) chose to employ four attorneys, even though the case didnot warrant that many attorneys, and (2) sought fees for time spent by their attorneys conferring about the case. Id. at 898-99.Accordingly, the district court directed plaintiffs to “submit an amended affidavit of counsel . . . containing an itemization ofattorney’s fees for which defendants may reasonably be charged consistent with this order.” Id. at 899. Plaintiffs complied withthe district court’s order and submitted an amended affidavit of counsel requesting $127,727.75 in fees. Id. at 901. Afterreviewing the amended affidavit, the district court concluded plaintiffs’ request was still “excessive,” was not in completecompliance with the prior order, and needed to be reduced. The district court concluded “a percentage reduction [wa]s thebest way to reach a reasonable sum,” id., and reduced their fee request by 25%, resulting in a total fee award of $95,795.44.Id. at 902. We find no abuse of discretion on the part of the district court in determining plaintiffs’ fee award. The district court carefullyconsidered and weighed each of the five relevant factors. In particular, it considered the relative merits of the parties’ positionson each claim asserted by plaintiffs and chose to deny fees to plaintiffs for time expended on two claims. Although differentjudges might have chosen to grant fees to plaintiffs for their failure to report claim, we find no abuse of discretion on the part ofthe district court in choosing otherwise. Indeed, the district court’s reasons for choosing not to grant fees on that claim strike usas entirely reasonable: Plaintiffs’ quest for an assessment of exorbitant penalties under 29 U.S.C. � 1132(c)(1) was . . . lacking in merit. The Courtruled as a matter of law before trial that a particular document should have been furnished to certain plaintiffs, and reserved forlater decision the issue of what penalty (if any) should be assessed on account of defendants’ nonproduction. Plaintiffs chosethat opportunity to generate a laundry list of materials that could have been encompassed by their request for documents and anelaborate calculation of fines applicable to those documents. By the time of trial, plaintiffs’ calculation exceeded three milliondollars. This was ridiculous. A presentation to the Court concerning the penalty issues to be decided at trial could easily havebeen prepared by a knowledgeable ERISA attorney within two hours’ time. App. at 897-98. Having said this, we nevertheless conclude it is necessary to reverse and remand the fee award in light of our decision regardingthe extent of health care coverage to which plaintiffs are entitled under the Rule of 70 plan. Because our decision in this regardalters the amount of benefits conferred on plan members, and likewise alters the relative merits of the parties’ positions, weconclude the district court should reevaluate the amount of fees to which plaintiffs are entitled and determine whether anincreased award is appropriate. Denial of motion to enforce judgment On October 1, 1997 (after the entry of final judgment and the filing of notices of appeal), defendants issued a memorandum toplaintiffs indicating there would be a change in health insurance coverage for those plaintiffs over the age of 65. Supp. App. at151. More specifically, the memorandum indicated plaintiffs over the age of 65 would be provided with health insurancecoverage, at defendants’ expense, “by BlueLincs HMO, a subsidiary of Blue Cross and Blue Shield of Oklahoma, through aprogram called ‘BlueLincs Senior.’” Id. Plaintiffs responded to the proposed change in coverage by filing a motion to enforce judgment. [FOOTNOTE 9]
Supp. App. at 118. Plaintiffsasked the district court “to direct the . . . defendants to cease and desist from this threatened action to eliminate theirsupplemental health benefits and to continue to provide medical benefits to the Medicare-eligible plaintiffs consistent with thoseprovided to other Rule of 70 Plan participants and required by the outstanding order” of the court. Id. at 124. On December 4,1997, the district court denied plaintiffs’ motion, apparently treating the motion as a motion for clarification of judgment underFed. R. Civ. P. 60(a). The court noted it had “previously found that the Rule of 70 Plan did not promise lifetime medicalbenefits at a particular level of coverage,” or “of a particular type.” Id. at 233. The district court further concluded the change incoverage proposed by defendants “neither shift[ed] any cost to plaintiffs nor terminate[d] medical insurance coverage; it merelyalter[ed] the manner in which health care services w[ould] be provided to Medicare/HMO-enrollee plaintiffs.” Id. Although thedistrict court acknowledged plaintiffs’ motion arose “from a lack of clarity in the Court’s prior findings,” more specifically”imprecise language in the judgment,” it emphasized plaintiffs’ counsel had prepared the judgment. Id. at 234. On appeal, plaintiffs contend the district court erred in failing to grant their motion. As with their separate attack on theunderlying judgment, plaintiffs contend that under the language of the October 3 letters they are entitled to the same type andlevel of coverage provided to them at the time of their retirement. We find it unnecessary to address these arguments, however,in light of our decision regarding the extent of health care coverage to which plaintiffs are entitled under the Rule of 70 plan. [FOOTNOTE 10]
III. Plaintiffs’ motion to dismiss is DENIED. As regards defendants’ appeal, we AFFIRM. As regards plaintiffs’ cross-appeals, weAFFIRM in all respects except for (1) the health insurance coverage issue, which we REVERSE and REMAND for entry ofjudgment consistent with this opinion, and (2) the fee award, which we REVERSE and REMAND to the district court forfurther consideration. :::FOOTNOTES::: FN1
This apparently differed from Woods’ normal retirement qualification in that it allowed employees to add five years to theirage/years of service. FN2
One of the plaintiffs, Lucille Kistler, was mailed an identical letter dated October 2, 1985. App. at 1318. For purposes ofconvenience, we will refer collectively to the letters as the “October 3, 1985 letters” or “the October 3 letters.” FN3
Rule 4 was modified effective December 1, 1998. We have relied on the prior version of Rule 4 in effect at the time therelevant procedural events in this case occurred. FN4
Defendants contend once the district court ordered that their cross-motion for fees would have the same effect for purposesof Rule 4(a)(4) as a Rule 59 motion, the time period for filing a notice of appeal did not begin to run until all outstanding feemotions were resolved. This contention finds no support in the language of Rule 4(a)(4). Although the time period for filing anotice of appeal does not begin to run until all of the types of motions listed in Rule 4(a)(4) are resolved by the district court, feemotions qualify only if “a district court under Rule 58 extends the time for appeal.” Fed. R. App. P. 4(a)(4)(D). Here, thedistrict court did not order that resolution of plaintiffs’ motion for fees would extend the time for appeal. Thus, the thirty-dayperiod for filing a notice of appeal began to run upon the resolution of the single outstanding Rule 4(a)(4) motion, i.e.,defendants’ cross-motion for fees. FN5
Although not specifically discussed by the parties, it is arguable there was a third ERISA plan created in the fall of 1996 whenthe company offered the second buyout program to its employees, including plaintiff Van Hoy. Assuming, arguendo, that a thirdplan was created, we conclude its terms were substantially similar to the plan created in the fall of 1995 via the October 3letters (save for the $20 monthly co-pay requirement for dependent health care coverage). FN6
The district court accurately described the language of the SPD as “muddy and baffling.” App. at 1295. FN7
In other cases, the SPD’s at issue have more clearly provided the employer/plan sponsor the right to amend or terminate.See, e.g., Sprague v. General Motors Corp., 133 F.3d 388, 401 (6th Cir.) (en banc) (stating SPD specifically provided thatGeneral Motors, the employer/plan sponsor, “reserve[d] the right to amend, change or terminate the Plans and Programsdescribed in this booklet”), cert. denied, 524 U.S. 923 (1998). FN8
The record suggests this is how the parties have effectively interpreted the plan since its inception. In particular, the recordindicates that at some point after 1985, defendants changed insurers from Massachusetts Mutual to Blue Shield of Idaho, butcontinued to provide plaintiffs with the same coverage as provided to defendants’ employees. FN9
According to plaintiffs, this change in coverage meant changing from the previous fee-for-service plan, in which plaintiffscould visit any doctor of their choice, to an HMO plan, under which plaintiffs would have to seek and receive prior approvalbefore visiting a particular doctor. Plaintiffs also contend the BlueLincs program “is offered to any Medicare-eligible individualfree of charge,” and thus costs defendants little or nothing to provide. In short, plaintiffs contend the BlueLincs program is”merely a free substitute for Medicare made available to persons who are willing to surrender control over the selection of thetype and manner of the health care they receive in return for such course of medical treatment as may be determined by theHMO.” Pls.’ Opening Br. at 31. FN10
We note that the district court must nevertheless determine, on remand, whether the BlueLincs coverage is consistent withour interpretation of the plan. In other words, the district court must determine whether the BlueLincs program providesplaintiffs with the same type of coverage that defendants’ current employees receive. If the answer to that question is “no,” thendefendants may not, consistent with the terms of the plan, purport to provide plaintiffs with health insurance coverage under theBlueLincs program.
Deboard v. Sunshine Mining and Ref. Co. United States Court Of Appeals, Tenth Circuit R. Charles Deboard; Lillian J. Deboard; William T. Wood; Mary E. Wood; Lucille M. Kistler; Knox Van Hoy; Martha Van Hoy, Plaintiffs-Appellees and Cross-Appellants, v. Sunshine Mining And Refining Company; Sunshine Precious Metals Inc.; Woods Research And Development Corporation, Defendants-Appellants and Cross-Appellees. Nos. 97-6226, 97-6249, 98-6020 Appeal from United States District Court for the Western District of Oklahoma D.C. No. CIV-95-1117-A) Filed: May 2, 2000 Before: TACHA, BRISCOE, and MURPHY, Circuit Judges. Counsel: Gayla C. Crain, of Epstein, Becker & Green, P.C., Dallas, Texas (Michael P. Butler, of Epstein, Becker & Green, P.C.,Dallas, Texas; and Bruce C. Jones, of Evans, Keane, Boise, Idaho, with her on the brief), for the appellants. Kirk D. Fredrickson (Jean A. McDonald with him on the brief), of McDonald & Fredrickson, P.C., Oklahoma City,Oklahoma, for the appellees.