Credit Managers Ass'n of Southern California v. Kennesaw Life & Accident Insurance

Opinion by Judge CANBY; Dissent by Judge BOOCHEVER.

In these consolidated appeals, Credit Managers Association of Southern California (“CMA”), appointed by a California state court as receiver for four insolvent health insurers, appeals the district court’s award of attorney’s fees to Kennesaw Life and Accident Insurance Company (“Kennesaw”). The district court awarded fees pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132 (g)(1) (1988). CMA also appeals the district court’s denial of its motion to quash a writ of execution obtained by Kennesaw to enforce the *746 judgment. We affirm in part, reverse in part and remand.

I. FACTS AND PROCEDURAL BACKGROUND

This appeal stems from the second round of proceedings in this protracted litigation. In March 1982, the Superior Court of Orange County appointed CMA as receiver for four insolvent entities that were involved in a program that provided health care benefits to individuals through their employers. Credit Managers Ass’n v. Kennesaw Life & Accident Ins. Co., 809 F.2d 617, 620 (9th Cir.1987) (“CMA I ”). Kennesaw “contracted to provide some coverage in connection with these benefits.” Id. at 619 .…

dissenting:

Because I believe ERISA does not authorize an award of attorney’s fees to Kennesaw, I respectfully dissent.

Section 1132(g)(1) of ERISA provides: “In any action under this subchapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C. § 1132 (g)(1) (1988). The plain language of the statute clearly limits awards to actions brought by a participant, beneficiary, or fiduciary. CMA is none of these. The words of the statute thus do not justify awarding fees to Kennesaw.

Nothing in the legislative history of ERISA suggests an intent to authorize fee awards beyond what the plain language allows. The enforcement provisions of ERISA were

S.Rep. No. 127, 93d Cong., 2d Sess. 35, reprinted in 1974 U.S.C.C.A.N. 4639, 4838, 4871. The few references to the attorney’s fees provision state that fees are available in actions by participants or beneficiaries. H.R.Conf.Rep. No. 1280, 93d Cong., 2d Sess. 327, reprinted in 1974 U.S.C.C.A.N. 5038, 5107; S.Rep. No. 383, 93d Cong., 2d Sess. 106, reprinted in 1974 U.S.C.C.A.N. 4890, 4989; H.R.Rep. No. 533, 93d Cong., 2d Sess. 21,…