Citations
- 1 F. Supp. 3d 743
Full opinion text
OPINION AND ORDER (1) DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF VESTING AND (2) DENYING PLAINTIFFS’ MOTION ■ FOR SUMMARY JUDGMENT ON THE ISSUE OF VESTING
PAUL D. BORMAN, District Judge.
This matter is before the Court on the parties’ cross-motions for summary judgment. Defendants filed a Motion for Summary Judgment with Appendices (ECF Nos. 95-101), Plaintiffs filed a response (ECF No. 112) and Defendants filed a Reply with Appendix (ECF Nos. 113-114). Plaintiffs filed a Motion for Summary Judgment as to Liability with Appendices (ECF Nos. 102-105), Defendants filed a Response with Appendices (ECF Nos. 108-111) and Plaintiffs filed a Reply (ECF No. 115). The Court heard oral argument on November 7, 2012. Following the hearing, the parties were provided the opportunity to consider whether or not they wished the Court to proceed first with a determination as to the reasonableness of Defendants’ changes to Plaintiffs’ health care benefits before addressing the issue of whether or not Plaintiffs’ health care benefits were vested. After learning on August 22, 2013, that both parties did not agree to have the Court proceed with the reasonableness determination and hold the vesting issue in abeyance, the Court agreed to issue its ruling on vesting, but permitted the parties to update or supplement their original summary judgment briefs with supplemental briefs, which both parties filed with the Court on September 16, 2013. (ECF Nos. 124, 125.) In addition, on November 26, 2013, Defendants filed a Notice of Supplemental Authority. (ECF No. 126.)
Having considered all of the above materials, and having heard oral argument, the Court, viewing the facts in the light most favorable to the non-moving party on these cross-motions for summary judgment, denies both parties’ motions for summary judgment. “ ‘For cross-motions for summary judgment, we must evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the non-moving party.’ ” Spectrum Health Continuing Care Grp. v. Anna Marie Bowling Irrevocable Trust, 410 F.3d 304, 309 (6th Cir.2005) (quoting Beck v. City of Cleveland, 390 F.3d 912, 917 (6th Cir.2004)). “ ‘The filing of cross-motions for summary judgment does not necessarily mean that an award of summary judgment is appropriate.’ ” Id. (alteration omitted). Accordingly, this case shall proceed to trial on Plaintiffs’ claim that their healthcare benefits were lifetime vested.
INTRODUCTION
This action involves a contractual claim to lifetime inalterable healthcare benefits for a certified class of Borg Warner retirees and their spouses. This Court previously certified a class of 1,750 retirees and surviving spouses of retirees who retired from Borg Warner on or after October 27, 1989 and before February 28, 2009, who had been represented by the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America in collective bargaining. (ECF No. 56, Opinion and Order Granting Class Certification.) Presently before the Court are the parties’ cross-motions for summary judgment on the class members’ claimed contractual right to vested (lifetime inal-terable) healthcare benefits. In this Opinion and Order, the Court addresses the issue of whether Plaintiffs’ healthcare benefits were vested for life or whether the benefits could be terminated at the expiration of each collectively bargained healthcare agreement.
1. BACKGROUND
Borg Warner manufactured transfer cases for four wheel drive vehicles for the automotive industry at its plant in Muncie, Indiana beginning as early as 1908. (ECF No. 100, Defs.’ Mot. Ex. 24, Deposition of Richard Nuerge, October 25, 2011, 9-10.) The Muncie Plant hourly workers were represented by the International Union and Local 287 (“UAW”). Id. As relevant to this litigation, Borg Warner provided health care benefits to its employees through a series of Collective Bargaining Agreements (“CBAs”) and Health Insur-anee Agreements (“HIAs”) for the years 1989-2009. The health benefits program consists of the CBAs (ECF No. 97, Defs.’ Mot. Ex. 15, May 4, 2012 Declaration of Anthony Behrman, Exs. 1-5) and the HIAs that supplement the CBAs (ECF No. 96, Defs.’ Mot. Exs. 1, 4, 5.) In addition, on September 27, 1990, Borg Warner and the UAW executed an Agreement to modify and extend the 1989 CBA, and on November 30, 1992, Borg Warner and the UAW executed an Agreement to modify and extend the 1989 HIA and the 1990 extension. (ECF No. 96, Defs.’ Mot. Exs. 2, 3.)
Although the Plaintiffs retired under different CBAs and HIAs, the parties appear to agree that the relevant language concerning health care coverage was consistent among each of the CBAs and HIAs. The parties also do not appear to contest the applicability of the provisions of any of the HIAs at any point in time, despite the fact that some of the HIAs were in fact executed long after the parties began to perform according to their terms.
The instant dispute began with the negotiation of the 1989 CBA, which brought an end to a seven-week strike, a labor dispute that the parties agree was driven largely by disputes related to rising health care costs. A significant factor driving Borg Warner’s desire to reduce its retiree benefit liabilities was a new set of accounting standards promulgated by the Financial Accounting Standards Board (“FASB”) that required for the first time that publicly traded companies, like Borg Warner, report their unfunded contractual benefit commitments as a liability. (EOF No. 98, Defs.’ Mot. Ex. 19, Deposition of Laura Champagne, January 13, 2012, 29-31.) These new FASB regulations created an enormous balance sheet liability for Borg Warner, and for the majority of publicly traded companies, threatening their ability to attract new business and to obtain financing. During the relevant time frame, 1989-2009, the parties operated under a series of collective bargaining agreements which varied to some degree but each of which contained similar language relevant to the vesting issue. Article Sixteen of the 1989 CBA, in language that continued unchanged (except as to the relevant termination date) through each of the successive agreements, dictates the duration of the CBA and provides as follows:
This agreement shall remain in full force and effent [sic] until September 12, 1992 and thereafter from year to year, unless either party shall give notice in writing at least sixty (60) days in advance of September 12, 1992, or any anniversary thereafter of its desire to terminate the Agreement.
ECF No. 97, Defs.’ Mot. Ex. 15, Ex. 1, 1989 CBA, Article Sixteen, p. 142.
Similarly, in language that remained unchanged in pertinent part, Article VIII of the 1989 HIA, executed by Borg Warner and the UAW in conjunction with the 1989 CBA, defines eligibility for retiree health care benefits and provides in pertinent part that:
Section 1. Presently retired employees and an employee who retires under the Retirement Income Program Agreement on or after December 1, 1989, ... shall be entitled to the life insurance, Managed Care, basic hospitalization/surgical/medical, prescription drug, major medical, substance abuse, vision, human organ/tissue transplant, and Medical Case Management coverages and procedures, as set forth in Exhibits A, C, D, E, F and H. Art. VIII, Sec. 1(A).
Section 2. An employee who terminates employment with the Company on or after January 1,1991 while participating in the Muncie Retirement Savings Plan shall be entitled to the ... coverages and procedures as set forth in Exhibits A, C, D, E, F and H. Art. VIII, Sec. 1(B).
Employees presently or hereafter retired under the Total and Permanent Disability provisions of the Retirement Income Program Agreement ... shall be entitled to the coverages and procedures set forth in Exhibits A, C, D, E, F and H. Art. VIII, Sec. 2.
Section 3. The Company will provide the medical coverages and procedures set forth under the provisions of Exhibits A, C, D, E, F and H and will pay the monthly premium for such coverage for:
A. A surviving spouse and the eligible dependent(s) of a retired employee ... who is receiving a monthly retirement benefits under Article Eight, Section 3, of the Retirement Income Program Agreement, and
B. An eligible surviving spouse ... and the eligible dependents of an employee who terminated employment with the Company while participating in the Muncie Retirement Savings Plan ...
C. The surviving spouse and the eligible dependents of an employee who was eligible to retire at the time of death under ... the Retirement Income Program Agreement or ... the Muncie Retirement Savings Plan ...
The medical coverages and procedures provided under this Article VIII, Section 3 shall terminate if the surviving spouse or Eligible surviving spouse remarries.
(ECF No. 96, Defs.’ Mot. Ex. 1, 1989 HIA, pp. 7-9.)
Also surviving through each iteration of the parties’ health care agreements (with modified relevant dates), Article XII of the 1989 HIA contains the following language:
This Agreement and the Plan embodied herein shall become effective as of October 27, 1989, and continue in full force and effect until September 12, 1992. During the term of this Agreement neither the Company nor the Union shall demand any change in this Agreement nor shall either party be required to bargain with respect to this Agreement .... On September 12, 1992 this Agreement may be terminated, modified, changed or continued in the same manner as provided in Article Sixteen of the aforesaid Collective Bargaining Agreement between the parties hereto dated October 27,1989.
ECF No. 96, Defs.’ Mot., Ex. 1, October 27,1989 HIA 15.
In Exhibit A to the 1989 HIA, in language that remained unchanged through each iteration of the HIAs from 1989 through 2009, the “Schedule of Benefits,” Section II setting forth “Basic Hospital, Surgical and Medical Benefits,” the parties agreed, specifically with reference to retiree health care benefits, as follows:
Termination of Coverages Provided Under Exhibit A: The coverages provided under this Exhibit A terminate on the date that:
(a)the eligible active employee leaves the employment of the Company (see the Agreement and Appendix for the applicable continuation provisions regarding layoff, disability, retirement, or COBRA);
(b) the eligible active employee/dependent or the eligible retiree/dependent is no longer eligible for coverage;
(c) the required monthly premium contribution, if applicable is not made;
(d) the eligible active employee or eligible retiree dies (see the Agreement or Appendix A for the applicable continuation provisions, if any); or
(e) the Agreement is terminated.
(ECF No. 96, Defs.’ Mot. Ex. 1, 1989 HIA, Appendix A, Ex. A, § 2(M)(2), p. 65-66.)
The Summary Description of the Plan of Insurance, included within the consecutively-paginated 1989 HIA and before the signature page on that document, and remaining in each successive version of the HIA, states as follows:
FUTURE OF THE PLAN
Although Borg-Warner Automotive Diversified Transmission Products Corporation, Muncie Plant expects and intends to continue the Plan indefinitely, it reserves the right to modify, amend, suspend or terminate the Plan or the Group Policies therein in accordance with the provisions of the Health Insurance Agreement.
Id. at p. 121.
Both the 1989 CBA and HIA were expressly set to terminate on September 12, 1992, barring a further modification of, or agreement to extend, their terms. Although both sides to the 1989 CBA and HIA performed their obligations under the terms of the agreements, the 1989 HIA was not formally executed by Borg Warner and the UAW until December 10,1992. (ECF No. 96, Defs.’ Mot. Ex. 1, p. 16, 16-B.)
On September 27, 1990, while the parties were performing under the terms of the 1989 CBA and HIA, they negotiated and executed an Agreement on Modification and Extension of Existing Labor Contract (the “ACME Contract”), which extended the 1989 CBA and HIA to March 11, 1995. (ECF No. 96, Defs.’ Mot. Ex. 2, 1990 ACME Contract.) In the ACME Contract, Borg Warner and the Union agreed to certain “Letters of Understanding” that were attached to the ACME Contract, including one entitled “Joint Letter of Agreement on Post-Retirement Benefit Liabilities.” (Id. Ex. 3.) In this Letter of Agreement, Borg Warner and the Union addressed the very vesting issue presented to this Court, setting forth their “agreement to disagree” on the vesting issue as follows:
The parties ... hereby acknowledge that medical insurance and life insurance benefits payable to the hourly retirees of DTP Muncie Plant (PRB Liabilities) pose a serious threat to the financial value and competitive status of the DTP Muncie Plant. The parties further recognize that a significant increase in the PRB Liabilities will occur over the next decade and beyond.
* * *
The parties hereby agree to establish a joint task force in an attempt to seek a solution to the PRB Liabilities issue which is acceptable to both parties and which is intended to reduce the projected total 1999 PRB Liabilities.
This agreement does not prejudice the union’s position that current retirees have lifetime vested benefits nor the DTP Muncie Plant’s position that current retirees do not have lifetime vested benefits.
(ECF No. 96, Defs.’ Mot. Ex. 2, p. 7, Ex. 3.) In July, 1992, the Joint Task Force issued a report setting forth certain options that the Committee had considered, none of which was binding on the parties. (ECF No. 112, Pis.’ Resp. Ex. 2, July 1992 Summary of the Joint Task Force.)
Subsequent to executing the 1990 ACME Contract, the parties again extended the HIA on December 10, 1992 and then negotiated and adopted changes to the HIA in March 1995, March 1998, December 2000, and April 2005. (ECF No. 97, Ex. 15, Exs. 2, 3, 4, 5.) None of these subsequent HIAs altered any of the language regarding termination of benefits or addressed directly the vesting issue or the 1990 ACME Contract “agreement to disagree” on the subject. The 1989 HIA was the last completed, signed HIA.
Under the 1992 HIA, a new category of retirees was created, Category B Retirees, those hired after December 31, 1992. (ECF No. 96, Defs.’ Mot. Ex. 4, 1992 HIA, 9.) Borg Warner agreed to create a Retiree Health Account (“RHA”) for Category B retirees to which the company made hourly contributions. (ECF No. 96, Defs.’ Mot. Ex. 4, 1992 HIA, 2-3, 9-10.) Category B retirees are not part of the instant lawsuit or the certified class. (ECF No. 102, Pis.’ Mot. 3, n. 3.)
Under the 1992 HIA, and later the 1995 HIA, Category A Retirees, those future retirees hired prior to January 1, 1993, were divided into subclasses, some of whom were required to participate in a PPO program and some of whom were subject to annual increases in deductibles and stop-loss amounts. (ECF No. 96, Defs.’ Mot. Ex. 4, 1992 HIA 5, 65, 80; Ex. 5, 1995 HIA 66-67, 82.) There were three subgroups of Category A retirees created under the 1992 HIA, depending upon whether the retiree participated in a new Preferred Provider Option (“PPO”) that became effective on January 1, 1993: (1) pre-1993 retirees who were not covered by the PPO because they retired before it came into existence; (2) elective retirees who retired between January 1, 1993 and March 11, 1995, who were given the option of either electing PPO coverage or coverage under the pre-1993 retiree program; and (3) post-March 11, 1995 retirees who were obligated to elect coverage under the PPO. (ECF No. 96, Defs.’ Mot. Ex. 4, 5-9; Ex. 5, 5-9; ECF No. 103, Pis.’ Mot. Ex. 3, July 17, 2007 Declaration of Jerry French in Borgwarner v. UAW, No. 06-0058 (S.D.Ind.2006), ¶ 14.) Class Representative Winningham and Kelley were subject, as post-March 11, 1995 retirees, to the PPO 1 participation requirement and to these annual deductible and stop loss increases. (ECF No. 100, Defs.’ Mot. Ex. 23, Kelley Dep. 11:17-20 (retired in 2001); Ex. 25, Winningham Dep. 9:18-20 (retired in 1996).)
In 1995, the parties entered into a new CBA which carried forward the terms of the 1992 HIA, with a term until March 12, 1998. (ECF No. 97, Defs.’ Mot. Ex. 15, Ex. 2, 1995 CBA art. 16, sec. 1, p. 124.) In 1998, they entered into a new CBA and negotiated a new HIA with terms until March 12, 2001. (ECF No. 97, Defs.’ Mot. Ex. 15, Ex. 3, 1998 CBA art. 16 sec. 1, p. 69; ECF No. 96, Defs.’ Mot. Ex. 6, 1998 Tent. HPW Agmt. 1-3; ECF No. 98, Ex. 19, Champagne Dep. 99:15-100:7.) The 1998 HIA increased certain existing retirees’ co-payments for prescription drugs by forty percent for generic drugs and twenty percent for branded ones. (ECF No. 96, Defs.’ Mot. Ex. 6, 1998 HPW Tent. Agmt. 1; Ex. 7, 1998 Health Bens. Summ. 3; ECF No. 100, Ex. 24, Nuerge Dep. 89:24-90:25.) Class Representative Winningham was subject to this increase.
In 2000 the parties entered into a new CBA and HIA with terms ending March 12, 2006. (ECF No. 97, Ex. 15, Ex. 4, 2000 CBA art. 16 sec. 1; ECF No. 96, Ex. 8, 2000 Tent. Agmt. 1-2.) The only relevant change was an increase in deductible and stop loss máximums of 5% for the years 2002-2005. (ECF No. 96, Ex. 8, p. 2.) In 2005 they entered into the most recent CBA and HIA which expired on April 24, 2009. (ECF No. 97, Ex. 15, Ex. 5, 2005 CBA art. 15, sec. 1, p. 117; ECF No. 96, Ex. 9, 2005 Tent. Agmt. 1; Ex. 10, 2005 Tent. Agmt. Clarifications 1-2; ECF No. 98, Ex. 18 Campbell Dep. 48:23-50:14, 63:7-64:1.) The 2005 HIA included a reduction in health care benefits and monthly contributions for future retirees and included a provision that hourly retirement-eligible employees who were hired before January 1, 1993, could elect to retire on some date between April 2005 and May 1, 2006, and preserve the same benefits that were available under the 2000 HIA. (ECF No. 103, Pis.’ Mot. Exs. 13, 14.)
In 2006, Borg Warner modified its health insurance coverages, aligning retiree benefits with those of current employees and filed an action in the United States District Court for the Southern District of Indiana seeking a declaration that it was permitted to unilaterally alter its health insurance plan prior to the expiration of the term of the operative HIA. Borgwarner Diversified Transmission Products, Inc. v. UAW, No. 06-cv-058, 2008 WL 4274476, at *1 (S.D.Ind. Sept. 12, 2008). The changes included requiring payment of monthly premiums, increasing annual deductibles, and increasing co-pays for drugs. Id. The district court held that Articles V and XII of the 2005 HIA prevented Borg Warner from unilaterally altering retiree benefits during the contract period. Id. at *3. In a subsequently issued opinion denying Borg Warner’s request for a finding on the issue of lifetime vesting, the district court explained that: “[T]he lifetime benefits issue is not properly before the Court because the retirees have a contractual guarantee of benefits until the current collective bargaining agreements expire and the retirees do not seek a declaration of their rights to lifetime benefits.” Borgwarner Diversified Transmission Products, Inc. v. UAW, No. 06-cv-058, 2008 WL 4724283, at *3 (S.D.Ind. Oct. 24, 2008).
On February 26, 2009, when the April 2005 HIA expired by its terms, the parties executed a Plant Shutdown Agreement, permanently closing the Muncie Plant and reiterating the “agreement to disagree” contained in the 1990 ACME Contract:
The Company and the Union have a dispute with respect to the nature of the Company’s obligation to provide post-retirement health care benefits to employees who retired prior to February 23, 2009 and their dependents. Nothing in this Plant Shutdown Agreement affects the parties’ rights or positions with regard to that dispute.
(ECF No. 97, Defs.’ Mot. Ex. 11, Plant Shutdown Agreement, art. 9, sec. B(2).)
On May 1, 2009, Borg Warner shuttered the Muncie Plant and unilaterally implemented modifications to the health care benefits of all persons who had retired from the Muncie Plant after October 27, 1989, the effective date of the 1989 HIA. Plaintiffs are approximately 1,750 retirees and surviving spouses of retirees who retired from Borg Warner’s Muncie Plant under a number of different CBAs and HIAs between October 27, 1989 and February 23, 2009, and now challenge Borg Warner’s unilateral modification of their health care benefits.
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, a party against whom a claim, counterclaim, or cross-claim is asserted may file a motion for summary judgment “at any time until 30 days after the close of all discovery,” unless a different time is set by local rule or court order. Fed.R.Civ.P. 56(b). Summary judgment is appropriate when “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.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Of course, [the moving party] always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. See also Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987).
A fact is “material” for purposes of a motion for summary judgment where proof of that fact “would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984) (quoting Black’s Law Dictionary 881 (6th ed.1979)) (citations omitted). A dispute over a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Conversely, where a reasonable jury could not find for the non-moving party, there is no genuine issue of material fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir.1993). In making this evaluation, the court must examine the evidence and draw all reasonable inferences in favor of the non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984). “ ‘The central issue is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir.2010) (quoting In re Calumet Farm, Inc., 398 F.3d 555, 558 (6th Cir.2005)).
If this burden is met by the moving party, the non-moving party’s failure to make a showing that is “sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial,” will mandate the entry of summary judgment. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. The non-moving party may not rest upon the mere allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts which demonstrate that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The rule requires the non-moving party to introduce “evidence of evidentiary quality” demonstrating the existence of a material fact. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145 (6th Cir.1997); see Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (holding that the non-moving party must produce more than a scintilla of evidence to survive summary judgment). “A genuine issue of material fact exists if a reasonable juror could return a verdict for the nonmoving party.” Pucci v. Nineteenth Dist. Ct., 628 F.3d 752, 759 (6th Cir.2010).
“Rule 56(e)(2) leaves no doubt about the obligation of a summary judgment opponent to make [his] case with a showing of facts that can be established by evidence that will be admissible at trial.... In fact, ‘[t]he failure to present any evidence to counter a well-supported motion for summary judgment alone is grounds for granting the motion.’ Rule 56(e) identifies affidavits, depositions, and answers to interrogatories as appropriate items that may be used to support or oppose summary judgment.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir.2009) (quoting Everson v. Leis, 556 F.3d 484, 496 (6th Cir.2009)).
“In reviewing a summary judgment motion, credibility judgments and weighing of the evidence are prohibited. Rather, the evidence should be viewed in the light most favorable to the non-moving party.” Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir.2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Thus, the facts and any inferences that can be drawn from those facts[ ] must be viewed in the light most favorable to the non-moving party.” Id. (alteration in original) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) and Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir.2005)). “For cross-motions for summary judgment, we must evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the non-moving party.” Spectrum Health, 410 F.3d at 309 (internal quotation marks and citation omitted).
III. ANALYSIS
A. Vesting of Collectively Bargained Health Care Benefits — The Analytical Framework
1. Vesting of health care benefits is a matter of contractual agreement.
“A retiree health care insurance benefit plan is a welfare benefit plan under ERISA.” Yolton v. El Paso Tennessee Pipeline Co., 435 F.3d 571, 578 (2006). Unlike pension plans, which are subject to mandatory statutory vesting requirements, health care benefit plans are creatures of contract, with rights to coverage arising only by virtue of the parties’ agreement:
Unlike pension plans, there is no statutory right to lifetime health benefits. If lifetime health care benefits exist for the plaintiffs, it is because the UAW and the defendants agreed to vest a welfare benefit plan. If a welfare benefit has not vested, after a CBA expires, an employer generally is free to modify or terminate any retiree medical benefits that the employer provided pursuant to that CBA.
Yolton, 435 F.3d at 578 (internal citations and quotation marks omitted). “If lifetime health care benefits exist for [these Plaintiffs], it is because the UAW and [Borg Warner] agreed to vest a welfare benefit plan.” Id. (citing Golden v. Kelsey-Hayes Co., 73 F.3d 648, 654 (6th Cir.1996)).
The threshold issue, then is whether Plaintiffs and Defendants agreed that retiree health care benefits would vest, i.e. that they would last a lifetime without alteration. The starting point for this inquiry is the collective bargaining agreement:
[W]hether retiree insurance benefits continue beyond the expiration of the collective bargaining agreement depends upon the intent of the parties. Clearly the parties to a collective bargaining agreement may provide for rights which will survive termination of their collective bargaining relationship. The parties may, for example, provide retiree insurance benefits which survive the expiration of the collective bargaining agreement. Any such surviving benefit must necessarily find its genesis in the collective bargaining agreement.
UAW v. Yard-Man, Inc., 716 F.2d 1476, 1479 (6th Cir.1983) (internal citations omitted). In Yardr-Man, the Sixth Circuit enunciated the important guiding principles of statutory construction that must be applied to determine whether the parties’ intent to provide for lifetime vested benefits can be learned by reference to the CBA alone:
Many of the basic principles of contractual interpretation are fully appropriate for discerning the parties’ intent in collective bargaining agreements. For example, the court should first look to the explicit language of the collective bargaining agreement for clear manifestations of intent. The intended meaning of even the most explicit language can, of course, only be understood in fight of the context which gave rise to its inclusion. The court should also interpret each provision in question as part of the integrated whole. If possible, each provision should be construed consistently with the entire document and the relative positions and purposes of the parties. As in all contracts, the collective bargaining agreement’s terms must be construed so as to render none nugatory and avoid illusory promises. Where ambiguities exist, the court may look to other words and phrases in the collective bargaining agreement for guidance. Variations in language used in other du-rational provisions of the agreement may, for example, provide inferences of intent useful in clarifying a provision whose intended duration is ambiguous. Finally, the court should review the interpretation ultimately derived from its examination of the language, context and other indicia of intent for consistency with federal labor policy. This is not to say that the collective bargaining agreement should be construed to affirmatively promote any particular policy but rather that the interpretation rendered not denigrate or contradict basic principles of federal labor law.
716 F.2d at 1479-80 (internal citations and quotation marks omitted).
The Sixth Circuit recently reaffirmed that Yard-Man continues to guide the inquiry into whether the parties to a CBA intended health care benefits to vest:
[C]ourts must first examine the CBA language for clear manifestations of an intent to vest. [Yard-Man, 716 F.2d at 1479]. Furthermore, each provision of the CBA is to be construed consistently with the entire CBA and “the relative positions and purposes of the parties.” Id. The terms of the CBA should be interpreted so as to avoid illusory promises and superfluous provisions. Id. at 1480. Our decision in Yard-Man also explained that “retiree benefits are in a sense ‘status’ benefits which, as such, carry with them an inference ... that the parties likely intended those benefits to continue as long as the beneficiary remains a retiree.” Id. at 1482. With regard to the “Yard-Man inference,” later decisions of this court have clarified that Yard-Man does not create a legal presumption that retiree benefits are interminable. Yolton, 435 F.3d at 579. Rather, Yard-Man is properly understood as creating an inference only if the context and other available evidence indicate an intent to vest. Id.
Bender v. Newell Window Furnishings, Inc., 681 F.3d 253, 261 (6th Cir.2012) (quoting Noe v. PolyOne Corp., 520 F.3d 548, 552 (6th Cir.2008)) (modifications in original). Only if the parties’ intent cannot be discerned from examining and attempting to harmonize all relevant provisions of the governing CBA is resort to extrinsic evidence appropriate:
When an ambiguity exists in the provisions of the CBA, then resort to extrinsic evidence may be had to ascertain whether the parties intended for the benefits to vest. [UAW] v. EVR Liquidating, Inc., 190 F.3d 768, 774 (6th Cir.1999). If an examination of the available extrinsic evidence fails to conclusively resolve the issue and a question of intent remains, then summary judgment is improper. [United Mine Workers] v. Apogee Coal Co., 330 F.3d 740, 744 (6th Cir.2003).
Bender, 681 F.3d at 261-62 (quoting Noe, 520 F.3d at 552) (modifications in original). See also Cole v. ArvinMeritor, Inc., 549 F.3d 1064, 1070 (6th Cir.2008) (“If an examination of the available extrinsic evidence fails to conclusively resolve the issue and a question of intent remains, then summary judgment is improper.”) (citing Apogee Coal, 330 F.3d at 744). “If the issue cannot be resolved by summary judgment, it is now settled that there would be no right to a jury trial of these claims.” Bender, 681 F.3d at 262 (citing Reese v. CNH Am., LLC, 574 F.3d 315, 327-28 (6th Cir.2009) (“Reese I”)).
Throughout, Plaintiffs bear the burden of establishing that vesting has occurred. Bender, 681 F.3d at 262 (“plaintiffs continue to bear the burden of proving that vesting has occurred”). While Yardr-Man creates an inference or a “thumb on the scales” in favor of vesting, it does not shift the burden to the Defendant. Golden, 73 F.3d at 656 (“Yardr-Man does not shift the burden of proof to the employer, nor does it require specific anti-vesting language before a court can find that the parties did not intend benefits to vest.”). The Sixth Circuit in Bender observed that Yard-Man suggests an inference in favor of vesting based upon the fact that retiree benefits are “status” benefits which carry with them an inference that they were intended to continue as long as the “status,” i.e. that of a retiree, continues to exist. The Sixth Circuit cautioned, however, that the “Yard-Man inference” does not alter Plaintiffs’ “burden of proving that vesting has occurred,” but only acts like “a thumb on the scales” or a “nudge” in favor of vesting where the court first finds either explicit contractual language or extrinsic evidence indicating an intent to vest:
Although no legal presumption arises and plaintiffs continue to bear the burden of proving that vesting has occurred, this court will apply the YardMan inference “so long as we can find either explicit contractual language or extrinsic evidence indicating an intent to vest.”
Bender, 681 F.3d at 262 (quoting Reese I, 574 F.3d at 321). Significantly, as neither the union nor the company is obligated to represent the interests of retirees in future negotiations, and because healthcare benefits are often considered to be a form of deferred compensation, the Yard-Man inference also serves to support the realization that retired workers likely would not choose to leave the future of their entitlement to compensation for work performed to the vagaries of future bargaining units. See Yolton, 435 F.3d at 581 n. 6, n. 8. See also Yard-Man, 716 F.2d at 1482 (“The employees are presumably aware that the union owes no obligation to bargain for continued benefits for retirees. If they forego wages now in expectation of retiree benefits, they would want assurance that once they retire they will continue to receive such benefits regardless of the bargain reached in subsequent agreements.”).
In the face of express, unambiguous contractual language disclaiming an intent to vest, the inferences suggested by Yard-Man and its progeny cannot be invoked to contradict the explicit language of the negotiated contracts. Linville v. Teamsters Misc. and Indus. Workers Union, Local 284, 206 F.3d 648, 651 (6th Cir.2000) (“The Yard-Man inference, however, cannot be used to contradict the express text of the agreement or plan documents.”). In Linville, the plan provided “that ‘[coverage ceases when the individual reached age 65.’” Id. (Alteration in original). In the face of such explicit contractual terms cutting off benefits, not present in the CBAs or HIAs in this case, the Sixth Circuit concluded that “the district court was incorrect in applying the Yard-Man inference ....” Id.
2. The significance of certain contractual language as evidence of intent.
In the absence of express contractual language disclaiming an intent to vest, the Sixth Circuit has recognized that the incorporation of certain language in collectively bargained health care agreements can serve as an indicia of an intent to vest health care benefits. All provisions of the controlling collectively bargained agreements, here the CBAs and the HIAs, must be considered in such an endeavor, and construed harmoniously if possible, to arrive at the parties’ intent. As Yard-Man instructs: “The intended meaning of even the most explicit language can, of course, only be understood in light of the context which gave rise to its inclusion ... [and a] court should also interpret each provision in question as part of the integrated whole.” 716 F.2d at 1479.
a. Tying of pension and health care eligibility.
The Sixth Circuit has repeatedly recognized that language in a CBA that ties eligibility for retiree health care benefits to eligibility for pension benefits manifests an intent to create lifetime health care benefits:
According to this court, language in an agreement that ties eligibility for retiree health benefits to eligibility for a pension indicates an intent to vest the health benefits. See McCoy v. Meridian Auto. Sys., Inc., 390 F.3d 417, 422 (6th Cir.2004); see also Golden v. KelseyHayes Co., 73 F.3d 648, 656 (6th Cir.1996). In McCoy, the agreement between the parties stated: “The Company shall contribute the full premium or subscription charge for Health Care ... for (i) a retired employee (including any eligible dependents) provided such retired employee is eligible for benefits under Article II of the Company’s Hourly-Rate . Employees Pension Plan.” McCoy, 390 F.3d at 419. After outlining the applicable law under Yard-Man and its progeny, the McCoy court held that because the CBA provision “ties eligibility for retirement-health benefits to eligibility for a pension ... there is little room for debate that retirees’ health benefits vested upon retirement.” Id. at 422. Likewise, the Golden court found an intent to vest retiree health benefits because there were “provisions in each of the CBAs ... which tie retiree and surviving spouse eligibility for health insurance coverage to eligibility for vested pension benefits.” Golden, 73 F.3d at 656; see also Yolton, 435 F.3d at 580 (citing Golden for the proposition that tying eligibility for retiree health benefits to eligibility for pension benefits indicates an intent to vest).
Noe v. PolyOne Corp., 520 F.3d 548, 558 (6th Cir.2008) (footnote omitted).
In Noe, the Sixth Circuit concluded that the following “tying” language served as evidence of an intent to vest health care benefits: “ ‘Employees who retire and who are eligible under the 1979 Employee Benefit Agreement for a Pension (other than a Deferred Vested Pension), shall receive the benefits described in this Article;’ ” and also in the language providing that “[ejmployees who retire and who are eligible under this Agreement for a pension (other than a Deferred Vested Pension), shall receive the Major Medical Benefits described in this Paragraph 12.7 ....” Id. at 559 (quoting the parties’ bargaining agreement). Criticizing the district court for disregarding such tying language, the Sixth Circuit concluded:
It is evident that the district court failed to appreciate that by tying the eligibility for retiree health benefits to the eligibility for a pension, the EBAs were actually speaking to the duration of the benefits. As we explained in Golden, “[sjince retirees are eligible to receive pension benefits for life,” the act of tying retiree health benefits to pension eligibility indicates “that the parties intended that the company provide lifetime health benefits as well.” Golden, 73 F.3d at 656 (explaining why the district court in Golden correctly focused on the presence of tying language). Here, the EBAs undoubtedly tie eligibility for retiree health coverage to eligibility for a pension, which is evidence of an intent to vest.
Noe, 520 F.3d at 559.
b. General durational clauses cannot trump a contractual promise for lifetime, vested benefits.
Several employers have attempted to rely on durational clauses in the parties’ collective bargaining agreements as evidence that the parties similarly intended to limit retiree health benefits to the duration of the CBA. In Yolton, supra, the Sixth Circuit addressed the relevance of general durational provisions in a CBA to the vesting of retiree health care benefits. Language in a CBA which contains a general provision stating that the agreement terminates on a specific date will not necessarily demonstrate that the health care benefits provided for in that agreement also terminate when the CBA expires by its terms.
In Yolton, the Sixth Circuit held that the district court did not abuse its discretion in rejecting defendant’s argument that a provision in the CBA stating that the health care plan would “run concurrently with [the CBA] and is hereby made part of this Agreement,” clearly indicated an intent not to vest health care benefits. The Sixth Circuit rejected the defendant’s suggestion that the parties intended that “every time a CBA expires, the company would be free to modify benefits until another CBA is agreed to. Stated another way, retiree’s health insurance coverage is subject to change every few years based on new bargaining agreements.” 435 F.3d at 580. Similarly, in Yardr-Man, the Sixth Circuit held that “the inclusion of specific dura-tional limitations in other provisions of the ... collective bargaining agreement suggests that retiree benefits, not so specifically limited, were intended to survive the expiration of successive agreements in the parties’ contemplated long term relationship.” Yard-Man, 716 F.2d at 1481-82.
In Bender, supra, the court found a general durational limitation to be insufficient to create ambiguity regarding an intent for lifetime vesting for retirees:
Defendants argued in the district court that there was no vesting because each of the CBAs provided that “[t]he insurance program as set forth in Exhibit A is agreed to for the duration of this contract.” (Emphasis added.)
However, “[a]bsent specific durational language referring to retiree benefits themselves, courts have held that the general durational language says nothing about those retiree benefits.” Noe, 520 F.3d at 554. Unlike the specific limitation on the duration of health insurance for those retiring on or after January 1, 1994, this language was general in nature and did not create ambiguity regarding the intention that medical insurance benefits continue for those who had already retired. See Maurer, 212 F.3d at 917-18.
Bender, 681 F.3d at 263. In Maurer v. Joy Technologies, Inc., 212 F.3d 907 (6th Cir.2000), relied on by the Sixth Circuit in Bender, the court distinguished general durational clauses that do not expressly refer to retiree benefits:
According to Joy, the CBAs’ language clearly terminated retiree insurance benefits along with the rest of the CBA provisions by providing that “[t]he basic [CBA], the Pension Agreement, the Group Insurance Agreement, and the Supplemental Unemployment Benefit Agreement, shall remain in full force and effect until midnight [expiration date],” and that “[t]his [CBA] when signed shall supersede all previous supplements and agreements made between the parties except as provided for under the terms of this [CBA].” These clauses are general durational provisions for the entire agreement, and are not clearly meant to include retiree benefits. See Yard-Man, 716 F.2d at 1482-83 (general durational clause not necessarily meant to include retiree benefits). Even though the clause makes clear that the insurance agreement terminates after three years, caselaw indicates that the termination of the agreement does not indicate the termination of benefits created by it, if the benefits are intended to vest. See id. If benefits have vested, then retirees must agree before the benefits can be modified, even by a subsequent CBA between the employer and active employees.
212 F.3d at 917-18 (emphasis added).
In Cole v. ArvinMeritor, Inc., 549 F.3d 1064 (6th Cir.2008), the Sixth Circuit recognized that general durational limits in a CBA, that do not refer specifically to retiree health care benefits, cannot operate to undo contractual promises of lifetime health care benefits:
[T]he rule in this circuit [is] that general durational clauses cannot trump contractual promises of lifetime retiree healthcare benefits. “[G]eneral durational provisions only refer to the length of the CBAs and not the period of time contemplated for retiree benefits. Absent specific durational language referring to retiree benefits themselves, courts have held that the general durational language says nothing about those retiree benefits.” Yolton, 435 F.3d at 580-81 (citations and internal quotation marks omitted).
Similarly, in Noe, supra, the Sixth Circuit held that the following language in an employee benefit plan was a general dura-tional clause and did not manifest an intent to limit retiree health benefits to the duration of the CBA: “Effective as of April 21, 1979 and for the duration of this Agreement, the Company will provide the following plan of hospital expense benefits, hospital-medical benefits, surgical benefits, prescription drug benefits, dental benefits and major medical benefits....” 520 F.3d at 556. Finding the language indistinguishable from that found to be generally durational in Yolton, the Sixth Circuit in Noe concluded: “[T]he language in § 12.1 does not specifically refer to retiree benefits; rather, it refers generically to the benefits available for all employees as well as retirees. Hence, the district court incorrectly held that § 12.1 indicates an intent not to vest retiree health benefits.” 520 F.3d at 556. Thus, absent contractual language referring to the duration specifically of retiree health care benefits, general durational clauses will not be interpreted as evincing an intent not to vest.
c. The significance of specific dura-tional clauses in some provisions but not others.
“The Sixth Circuit has consistently held that the inclusion of specific durational limitations in some provisions, but not others, suggests that benefits ‘not so specifically limited, were intended to survive.’ ” Moore v. Menasha Corp., 690 F.3d 444, 458 (6th Cir.2012) (quoting Yolton, 435 F.3d at 581-82). In Yard-Man, the Sixth Circuit acknowledged the interpretive significance of specific limitations on the duration of benefits for other categories of insureds, such as surviving spouses or dependents, as inferring the absence .of such limitations on benefits for retirees themselves:
[T]he insurance provisions limit health insurance coverage for a retiree’s spouse and dependent children in case of the retiree’s death to expiration of the collective bargaining agreement. While this limitation does not preclude an intent to also terminate the retiree’s benefits with the expiration of the collective bargaining agreement in any event, it is more reasonable to infer that the spouse-dependent child provision was meant as an exception to the anticipated continuation of benefits beyond the life of the collective bargaining agreement.
716 F.3d at 1481. See also Noe, 520 F.3d at 562-63 (noting that “[t]he presence of specific durational language in other provisions and its absence in the retiree health benefits provisions suggests an intent to vest under our case law” and finding that specific durational language limiting entitlement to health care benefits in the case of employees on layoff or on leave indicated an intent to vest).
3. The language of an SPD as bearing on intent.
As the Supreme Court cautioned in CIGNA Corp. v. Amara, — U.S. -, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011), provisions of a separately issued SPD generally cannot be enforced as terms of the CBA. “[W]e cannot agree that the terms of statutorily required plan summaries (or summaries of plan modifications) necessarily may be enforced (under § 502(a)(1)(B)) as the terms of the plan itself.” 131 S.Ct. at 1877. As the Sixth Circuit recognized in Bender, acknowledging the Supreme Court’s cautionary language in CIGNA, “a plan summary cannot vitiate contractually vested or bargained-for-rights.” 681 F.3d at 265 (internal quotation marks and citation omitted). It is well accepted that, in the event of ambiguity in the language of the CBA, an SPD may be considered as extrinsic evidence of intent. However, the Sixth Circuit has also recognized certain limited circumstances in which it may be appropriate to consider the language of the SPD “ ‘alongside the CBA before reaching the ambiguity issue.’ ” Bender, 681 F.3d at 264 (quoting “dicta” from Schreiber v. Philips Display Components Co., 580 F.3d 355, 365 n. 12 (6th Cir.2009)).
First, language in the CBA that explicitly and unequivocally incorporates the terms of the SPD into the CBA may support the Court’s consideration of the language of the SPD along with the provisions of the CBA. Schreiber, 580 F.3d at 365 n. 12. In Bender, the Sixth Circuit clarified that any such “incorporation by reference” could only occur based upon “explicit incorporation language” in the CBA, leaving no room for doubt that the SPD should be considered on par with the language of the CBA. 681 F.3d at 264-65 (finding that CBAs reference to a “booklet and policy” without any “explicit language of incorporation” was insufficient to support incorporation by reference).
Secondly, the Sixth Circuit has recognized that in limited circumstances, explicit and unqualified language in an SPD that reserves the employer’s right to unilaterally terminate or modify benefits can preclude a finding of an intent to vest:
If an employer includes “unqualified reservation-of-rights language” in an SPD to the effect that the employer has a “unilateral right ... to terminate coverage,” and if a union fails to grieve or object to such language, then such reservation-of-rights language “prevents] retiree benefits from vesting” even if the SPD was distributed after the effective date of the CBA. Prater v. Ohio Educ. Ass’n, 505 F.3d 437, 444 (6th Cir.2007); see Maurer, 212 F.3d at 919. But there is an exception. No divesting occurs when the SPD contains language reminding readers that “the contracts represent the full commitments between the parties” because a union cannot fairly be expected to protest when the SPD makes it clear that the CBA, not the SPD, controls a conflict. See Prater, 505 F.3d at 444-45.
Reese I, 574 F.3d at 323. The touchstone for deciding the weight to be given such language is whether the contested “reservation of rights [is] sufficiently unqualified so as to fairly be expected to prompt an immediate protest by the union.” Bender, 681 F.3d at 265. In Bender, the Sixth Circuit again recalled this same conclusion from Prater, explaining that “the prohibition on unilateral modification in the CBA meant that the union could not be required to protest the SPD as long as ‘the summary does not explicitly renounce the CBA.’ ” 681 F.3d at 266 (quoting Prater, 505 F.3d at 445). See also Moore, 690 F.3d at 458-59 (“Only where the SPD states ‘an unqualified assertion of a unilateral right to end retiree medical insurance benefits without regard for existing or future CBAs,’ do we allow a later-issued SPD to trump the terms of a bargained-for CBA.”) (quoting Bender, 681 F.3d at 266); McCoy v. Meridian Automotive Sys., Inc., 390 F.3d 417, 425 (6th Cir.2004) (holding that an SPD that seeks to terminate benefits but refers to the underlying CBA, which the union believed vested health care benefits, would not prompt a- union protest and cannot vitiate benefits guaranteed under the CBA).
4. The significance of an ROR within the negotiated agreement.
The Sixth Circuit also recently found no inherent incompatibility between a promise of continuous healthcare coverage and a reserved right to discontinue those same promised benefits in the same negotiated agreement. In Witmer v. Acument Global Tech., Inc., 694 F.3d 774 (6th Cir.2012), the Sixth Circuit affirmed the ruling of the district court, which had concluded that Acument had not promised lifetime, unchangeable healthcare benefits to its retired employees where it granted lifetime benefits but in the same CBA, reserved the right to amend, modify, suspend or terminate plan benefits:
The contractual question is this: Did the governing CBA create unalterable lifetime — “vested”—healthcare and life-insurance benefits? The contractual answer is no. The CBA reserved Acument’s right to modify or terminate future benefits.
The relevant language appears in “Appendix E” to the CBA, R. 98-1 at 22-24, reprinted as its own appendix to this opinion. It starts by saying that “the Company will revise the pension plan established in 1955, hereinafter referred to as the ‘Plan,’ as follows.” It then contains five numbered paragraphs. The first three deal with the use of an insurance company to manage the pension fund and with the company’s lack of responsibility for the insurance company’s treatment of contributions and pay outs. Paragraph four contains a reservation-of-rights clause. “The Company,” it says, “reserves the right to amend, modify, suspend, or terminate the Plan.” The fifth paragraph introduces the benefits provided under the Plan, saying that the “[pjrincipal provisions of the pension plan are shown below.” What follows are several listed retirement benefits: retiree medical coverage; retirement income; disability income; and life insurance. In addition to describing the benefits, this section of the Appendix identifies the minimum years of service needed to obtain each benefit as well as other eligibility requirements and qualifications.
The key problem for plaintiffs is that the same document that contains the promise on which they rely (“continuous health insurance” at retirement) contains a reservation-of-rights clause (“reserv[ing] the right to amend ... or terminate the Plan”). Their claim for benefits gets nowhere without Appendix E, and yet Appendix E broadly reserves the company’s right to change the Plan benefits, using language that is incompatible with a promise to create vested, unchangeable benefits. See Maurer v. Joy Techs., Inc., 212 F.3d 907, 919 (6th Cir.2000).
The language and structure of Appendix E show that the reservation-of-rights clause applies to all benefits listed there, not just to some of them. After describing the company’s reservation of rights in paragraph four, paragraph five says that the “[principal provisions of the pension plan are shown below.” Below that are provisions for “retiree medical coverage” and “continued life insurance” alongside retirement-income and disability-income provisions. What Appendix E broadly gives in the form of a wide range of retirement benefits it thus broadly reserves the right to take away or modify.
694 F.3d at 775-76. The Sixth Circuit found nothing inconsistent in the promise of “continuous health insurance” for the “life of the retiree,” and the reservation of the right to take those lifetime benefits away: “Surely a company can promise ‘continuous health insurance’ and reserve the right to modify or end that coverage if it becomes unaffordable. That is all the reservation-of-rights clause does. The continuous-coverage clause at all events serves another purpose: It shows that benefits do not automatically terminate when the CBA expires.” Id. at 777.
As Witmer makes clear, an important distinction must be maintained between a decision to continue health care benefits beyond the life of an existing agreement and a promise to provide those benefits for a lifetime, without change. While a promise of lifetime benefits may be made, and while that promise may continue through successive iterations of the parties’ agreements, conduct on the part of the employer choosing to continue those benefits, or stated otherwise the employer’s choice not to exercise its option to discontinue them, cannot negate an original clearly expressed intent to reserve the right to do so. The District Court in Witmer, Judge Duggan, noted this important distinction:
Plaintiffs contend that extrinsic evidence confirms the parties’ intent to vest benefits. Plaintiffs cite the continuation of benefits by Ring Screw and Acument after termination of the relevant CBAs, arguing that this conduct is evidence that the parties understood the CBAs to have vested retirees’ health care and life insurance benefits. . Acument’s conduct fails to establish vesting, as it is entirely consistent with a reservation of rights. Acument did not exercise its right to amend, modify, suspend, or terminate retirees’ benefits until late 2007, but the Court cannot presume that Acument’s continued provision of benefits waived this right, and Plaintiffs have failed to cite any legal authority holding that delay in exercising one’s contractual right constitutes waiver.
Witmer v. Acument Global Tech., Inc., No. 08-12795, 2011 WL 2111899, at *6 (E.D.Mich. May 26, 2011).
5. Consideration of extrinsic evidence.
Only if the parties’ intent still cannot be discerned from examining and attempting to harmonize all relevant provisions of the governing CBA is resort to extrinsic evidence appropriate. “When an ambiguity exists in the provisions of the CBA, then resort to extrinsic evidence may be had to ascertain whether the parties intended for the benefits to vest.” Bender, 681 F.3d at 261-62 (quoting Noe, 520 F.3d at 552) (citation omitted). As discussed infra, when consideration of extrinsic evidence is appropriate, the company’s totality of conduct with regard to its retirees’ right to benefits is relevant to whether a promise of lifetime benefits has been made and whether an SPD, or even a CBA, clearly establishes the company’s right to unilateral!y end retiree medical insurance benefits.
B. Borg Warner’s Contention That the Parties Never Agreed to Vested Retiree Health Care Benefits
Borg Warner relies on what it asserts is the explicit and unambiguous language of the CBAs and HIAs, and the 1990 ACME Agreement, to support its vesting argument. It asserts that the Court need not invoke the tools of contractual interpretation suggested by Plaintiffs, i.e. it need not examine and attempt to harmonize various the provisions of these contract documents that Plaintiffs assert support an inference of tying because, in Borg Warner’s view, the contract language is unambiguous on the issue of vesting. Borg Warner asserts that it agreed to provide health care benefits to retirees only during the term of each respective HIA, not for the life of the retiree (or the life of the retiree’s spouse). Defendants argue that each HIA had a termination date and that all benefits guaranteed thereunder, including specifically retiree benefits, were terminable at that time. Each HIA gave either party the right to terminate, modify or continue the health care agreement and the benefits thereunder in accordance with the terms of the CBA, which allowed either party to terminate the CBA upon written notice given sixty days’ prior to its date of expiration. Between 1989 and 2005, each HIA that expired was replaced with a subsequent HIA that continued coverage with certain alterations. The final HIA, the 2005 HIA, was terminated according to its terms in the Plant Shutdown agreement.
Defendants contend that each HIA specifically stated that the health care benefits provided in that particular HIA, including expressly retiree benefits, also terminated. Defendants contend that language contained in each HIA distinguishes this case from the many cases in which the Sixth Circuit has concluded that dura-tional language that does not specifically refer to retirees’s healthcare benefits is not sufficient to prove an intent not to vest retiree benefits. In support of this important distinction, Borg Warner relies on § 2(M)(2) of the 1989 (and successive) HIAs, which expressly refers to retiree benefits and provides that the health care coverages described in the HIA terminate on the date that: (1) the employee leaves employment, i.e. retires, is laid off, is disabled; (2) the employee/dependent is no longer eligible for coverage; (3) fails to make any applicable premium payments; (4) the employee/retiree dies; or (5) the HIA is terminated. (ECF No. 96, Defs.’ Mot. Ex. 1, 1989 HIA, Appendix A, Ex. A, § 2(M)(2), pp. 65-66.) (Emphasis added). Thus, Defendants argue, when Borg Warner chose to terminate the 2005 HIA in 2009, retiree benefits, that had been