ORDER GRANTING DEFENDANT CNF INC.'S MOTION FOR SUMMARY JUDGMENT

ALAN JOHNSON, District Judge

The Motion for Summary Judgment filed by defendant CNF Inc., ("CNF"), the plaintiff's response in opposition to the motion, and the defendant's further reply came before the Court for consideration, having been submitted to the Court upon the parties' written submissions. The Court, having reviewed the parties' submissions, the materials submitted in support of their respective positions, the pleadings of record, the applicable law, and being fully advised, FINDS that the motion for summary judgment filed by defendant CNF Transportation, Inc. should be GRANTED, for the reasons stated below.

Summary Judgment Standards

In applying these standards, the district court will view the evidence in the light most favorable to the party opposing summary judgment. Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996). The movant bears the initial burden of demonstrating the absence of evidence to support the non-moving party's claims.Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). When the non-moving party bears burden of proof at trial, the burden then shifts to it to demonstrate the existence of an essential element of its case. Id. To carry this burden, the non-moving party must go beyond the pleadings and designate specific facts to show there is a genuine issue for trial.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986);Ford v. West, 222 F.3d 767, 774 (10th Cir. 2000). The mere existence of a scintilla of evidence in support of the non-moving party's position is insufficient to create a "genuine" issue of disputed fact. Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997).

Findings of Fact

1. The Complaint filed by plaintiff Gary Conkin seeks payment from CNF, formerly known as Consolidated Freightways Inc., ("CFI") of certain pension and employee welfare benefits, including long-term disability ("LTD") benefits. Conkin's complaint alleges all such benefits are due under a 1995 CFI Employee Benefits Handbook.

2. All of the employee benefit plans at issue in this case are governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq.

3. Conkin served as a Terminal Manager in Casper, Wyoming for CF Motor Freight, a d/b/a of Consolidated Freightways Corporation of Delaware ("CFCD"). Conkin was the manager of the CFCD Freight Terminal and worked for CF Motor Freight until he became disabled in December of 1988. His was a work-related disability.

4. In conjunction with other litigation initiated by Conkin against the Stouffer Hotel Management Corporation seeking to recover for personal injuries arising out of his attendance at a management seminar on behalf of Consolidated held at the Stouffer Concourse Hotel on December 12, 1998, Conkin and Consolidated Freightways, Inc., by agreement dated July 2, 1993, entered into a "Settlement Agreement and Mutual Release" which provided in part as follows:

. . . WHEREAS, as a result of these injuries, Conkin has received various benefits from Consolidated, including but not limited to, short-term disability benefits, long-term disability benefits, self-insurance Workers Compensation benefits, and the payment of medical expenses:

WHEREAS, as a result of the payment of these benefits, Consolidated has been permitted to intervene and file an intervenor's complaint in the above-referenced litigation, asserting subrogation rights with respect to amounts paid to Conkin, which rights are legal, equitable and contractual in nature; and

WHEREAS, Conkin has reached a settlement of his claims against Stouffer and, at the same time, desires to resolve the subrogation claims of Consolidated and all other rights which Conkin may have for the payment of benefits from Consolidated in the future, without the necessity of further legal proceedings or additional costs and expense.

NOW THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, Conkin and Consolidated agree as follows:

1. Contemporaneously with the execution of this Agreement, Conkin shall pay to Consolidated, out of the monies received in conjunction with his settlement with Stouffer, the sum of $100,000.00, in satisfaction of all rights of subrogation for monies which Consolidated has previously paid to Conkin for the benefits outlined in the Intervenor's Complaint in the Litigation.

2. Upon execution of this Agreement, Conkin shall be entitled to receive any and all future benefits to which he is otherwise qualified to receive pursuant to Consolidated's Extended Sick Pay Plan, subject to any appropriate set off under Workers Compensation, the Occupational Disease Act or law, the Federal Insurance Contributions Act, primary and dependent's Social Security Disability Benefits, military disability pay, Unemployment Compensation disability pay, or any other federal and state statutory benefits. Consolidated acknowledges that it shall claim no set off with respect to any future benefits to which Conkin is entitled under the Consolidated Extended Sick Pay Plan with regard to those amounts paid to Conkin by Stouffer pursuant to the settlement of the above-referenced litigation, other than the $100,000.00 cash payment to be received pursuant to paragraph 1 above. Nothing herein shall be construed as a waiver by Conkin of any and all other rights to benefits that he may have pursuant to Consolidated's other benefits plans or under the Employees Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., or any claims relating to vacation pay or against any insurance company which provides Accidental Death and Dismemberment policies through any Consolidated group plan.

3. Except as limited by paragraph 2 of the Agreement, with respect to Conkin's entitlement to any Consolidated Extended Sick Pay Plan benefits, Conkin shall comply with all requirements of the plan which are conditions to the receipt of any benefits, including, but not limited to, any necessary periodic medical exams or other reporting requirements.

* * * *

5. In this action, Conkin has relied upon the foregoing Settlement Agreement to support his contention that he continues to be entitled to recover disability benefits of the defendant. This Court disagrees and finds that the foregoing agreement, under its express language, was primarily addressed toward resolving the subrogation dispute arising out of Conkin's work-related injury, and did not provide expressly for him to recover disability benefits in perpetuity contrary to the terms of any underlying applicable welfare disability plan in which he is or has been a participant.

6. CFCD was a wholly owned corporate subsidiary, and part of the transportation services division, of CFI, a holding company. CFI was a supply chain management firm listed on the New York Stock Exchange.

7. CFI sponsored a Retirement Plan and a Welfare Benefits Plan for itself and certain of its corporate subsidiaries and affiliates, including CFCD, which were "participating employers" in these plans. Although CFI was the plan sponsor of both plans, the Plan Administrator and fiduciary was not CFI, but an Administrative Committee appointed by CFI's chief executive officer.

8. The CFI Welfare Benefits Plan included an Extended Sick Pay Plan ("ESPP"), which paid benefits to Conkin. The ESPP covered both 60 days of Extended Sick Pay benefits and later LTD benefits, as well as the continuation of health care benefits and life insurance coverage, until the participant was no longer totally disabled, reached age 65, died, or the plan was terminated. LTD benefits were not insured but self-funded by reserves set up by each participating employer, such as Conkin's employer, CF MotorFreight.

9. Extended Sick pay benefits were paid through the CFI payroll system and the expenses for CFCD employees, such as Conkin who had worked for CF MotorFreight, were charged back to CFCD. These benefits continued for 60 days while the employee was disabled from his or her own occupation.

10. Following this 60-day period, LTD benefits became effective for an employee who was disabled from any occupation, as defined in the ESPP. Until LTD Plan Administration was taken over in 1996 by Voluntary Plan Administrators, a third-party administrator, these benefits were paid through the CFI payroll system. The expenses for CFCD employees, such as Conkin who had worked for CF MotorFreight, were charged to CFCD directly through its own LTD reserve.

11. The 1996 CFI Employee Benefits Handbook, referred to at paragraph 6 of Conkin's complaint, collectively covered CFI and certain of its subsidiaries and affiliates as "participating employers," including CF MotorFreight. The handbook governed both pension and welfare benefits.

12. In a reservation of rights clause, CFI unequivocally reserved the right to amend or terminate its Retirement Plan and Welfare Benefits Plan at will, at any time. In a front section entitled "Modification or Termination of Benefits Plans," the 1996 CFI Employee Benefits Handbook stated:

Although the Company expects to continue each of the plans described in this book, it reserves the right to amend or terminate any plan at any time without notice to the employees.

(Emphasis added.)

13. The CFI Welfare Benefits Plan also contained a plan termination clause. This clause specified that LTD benefits, which included health care and life insurance coverage, would not continue past plan termination, even if the participant was totally disabled. The clause made clear that LTD benefits were not vested; rather, the benefits expressly would end when CFI terminated the plan. In a section entitled "Extended Sick Pay Plan (Long Term Disability Benefits)," the 1995 CFI Employee Benefits Handbook stated, under "When Do Benefits Stop":

Subject to the maximum benefits period described below, your benefits under the Extended Sick Pay Plan end on the earlier of the following:

• You cease to be totally disabled, or

• on your death, or

• the Company terminates the Plan.

(Emphasis supplied).

14. In December 1996, a new corporation, Consolidated Freightways Corporation ("CFC") was formed as a holding company. CFC became the parent company of CFCD, holding all of its common stock and all of the CF MotorFreight business.

15. A separately-incorporated New York Stock Exchange company, CFC was one of the nation's largest interstate trucking companies.

16. In December 1996, CFI spun off CFCD to the shareholders of CFI. The spin-off included the CFCD Freight Terminal in Casper, Wyoming, where Conkin had worked prior to his disability.

17. CFI was renamed CNF Transportation, Inc. CNF Transportation, Inc., a holding company, continued the supply chain management business of CFI, but not the CFCD transportation services business. CNF Transportation Inc. was later renamed CNF Inc.

18. Coincident with the December 1996 spin-off, there was a separation of employee benefit plans. CFC set up new pension and welfare benefits plans for its employees and for the employees and former employees of its subsidiaries, including CFCD. These new plans included Conkin, as a disabled former employee of CF MotorFreight.

19. Pursuant to an Employee Benefit Matters Agreement ("EBMA") dated December 2, 1996, CFC and its subsidiaries immediately ceased participating in the employee benefit plans sponsored by CFI.

20. Under the EBMA, CFC was responsible for establishing new pension and welfare benefit plans for its own employees, and the current and former employees of its subsidiaries and affiliates, including Conkin. Consequently, Conkin was no longer a participant covered by the CFI plans and instead, was a participant covered by CFC's newly created plans.

21. In the EBMA, CFI and CFC agreed not only to a separation of employee benefit plans, but that each had sole responsibility for its own employee benefit plans.

22. In "Separation of Benefit plans, Article II of the EBMA, it states in pertinent part:

2.1 Adoption of Company Plans. [CFC] and its Subsidiaries shall, as of the Distribution Date, cease participating in the employee benefit plans sponsored by CFI. As of the Distribution Date [CFC] shall adopt employee benefit plans covering [its] employees that are substantially the same as the employee benefit plans sponsored by CFI covering Company Employees prior to the Distribution Date. . . .

2.2 Separate Responsibilities. CFI and [CFC] agree that CFI shall have sole responsibility for its employee benefit plans, arrangements and policies for employees of CFI and its Subsidiaries and that [CFC] shall have sole responsibility for its employee benefit plans, arrangements and policies for Company Employees. . . .

23. The December 1996 separation of employee benefit plans and CFC's obligation to adopt new plans extended to LTD benefits in pay status. Article V of the EBMA, entitled "Welfare Benefit Plans," stated in pertinent part:

5.4 Long Term Disability Benefits. [CFC] and its Subsidiaries shall be obligated to provide long-term disability benefits to disabled Company Employees, with the obligation applying to the entity the disabled individual was employed by at the time of the disability.

24. Coincident with the December 1996 separation of employee benefit plans, Conkin was picked up by the CFC's newly created Pension Plan and Welfare Benefits Plan. Although CFC was the plan sponsor of both Plans, the Plan Administrator and fiduciary was not CFC, but an Administrative Committee appointed by CFC's chief executive officer.

25. As part of the spin-off, and as required by ERISA's pension plan spin-off rules, 29 U.S.C. § 1058, CFI transferred sufficient assets from its Retirement Plan to the newly created CFC Pension Plan to cover the accrued pension benefits of its participants. These participants in the new CFC Pension Plan included CFC employees and the employees and former employees of its subsidiaries, such as CFCD, including Conkin.

26. Coincident with the December 1996 spin-off, Conkin's pension and welfare benefits were the sole responsibility of the CFC Pension Plan and Welfare Benefits Plan, in which he was a participant.

27. After the December 1996 spin-off, Conkin received benefits including LTD benefits, as a participant in the CFC Welfare Benefits Plans.

28. The 1998 CFC Employee Benefits Handbook described the CFC Pension Plan and Welfare Benefits Plan. In a reservation of rights clause, CFC unequivocally reserved the right to amend or terminate the Plans at will, at any time. In a front section entitled "MODIFICATION OF TERMINATION OF BENEFIT PLANS," the Handbook stated:

Although the Company expects to continue each of the plans described in this book indefinitely, it reserves the right to amend or terminate any plan at any time without notice to any covered person.

(Emphasis supplied).

29. The 1998 CFC Employee Benefits Handbook's plan termination clause specified that welfare benefits would not continue past plan termination even if the participant were totally disabled. The clause made clear that LTD benefits were not vested. Rather, the benefits expressly would end when CFC terminated the plan. In a section entitled "Long Term Disability Plan," the Handbook stated under "When Do Benefits End":

Subject to the maximum benefits periods described below, your benefits under the Long Term Disability Plan end on the earlier of the following:

• you cease to be totally disabled,

• on your death,

• the Company terminates the plan.

30. The CFC Welfare Benefits Plan was terminated during the CFC Chapter 11 bankruptcy proceeding, which was filed September 3, 2002.

31. The Pension Benefit Guaranty Corporation ("PBGC") took over the CFC Pension Plan in April of 2003, terminated it, and began paying pension benefits under the PBGC insurance provisions.

Conclusions of Law

Under ERISA, an employee benefit plan, which must be in writing, 29 U.S.C. § 1102(a), is a separate and distinct statutory entity that can sue or be sued in its own right. 29 U.S.C. § 1132(d)(1), (2). ERISA's exclusive civil enforcement provisions authorize a participant to sue to recover benefits due under the terms of his plan. 29 U.S.C. § 1132(a)(1)(B). ERISA does not permit a participant's suit against any entity, including a plan or an employer, for benefits greater than what the plan itself allows.

Under ERISA's preemption clause and exclusive civil enforcement provisions a participant seeking to recover benefits under an employee benefits plan must seek to recover plan benefits from the employee benefit plan itself as a statutory entity, not the employer plan-sponsor. 29 U.S.C. §§ 1144(a), 1132(a), 1132(d)(a)(2); Gelardi v. Pertec Computer Corp., 761 F.2d 1323; 29 U.S.C. § 1132(a) provides the exclusive causes of action for claims by ERISA plan participants and benefits seeking to enforce rights under an ERISA plan. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. at 54, 107 S.Ct. at 1556. See also Slice v. Sons of Norway, 34 F.3d 630, 631-633 (8th Cir. 1994).

Conkin is precluded under applicable ERISA law from suing CNF to recover pension or employee welfare benefits. He is not a participant in the CNF Retirement Plan or Welfare Benefits Plan with standing to sue to recover benefits. Additionally, a participant may only sue the appropriate employee benefit plan, as a statutory entity, to recover employee benefits claimed to be owed under the plan terms and not the employer plan sponsor. This alone entitles the above captioned defendant to judgment as a matter of law.

However, other grounds also entitle CNF to summary judgment on Conkin's cause of action seeking to recover pension benefits. As permitted by ERISA, 29 U.S.C. § 1058, and in connection with the December 1996 spin-off, CFI transferred sufficient assets from its Retirement Plan to the newly created CFC Pension Plan to recover accrued pension benefits of the new participants in that Plan, including employees of CFC and employees and former employees of its subsidiaries, such as CFCD and Conkin. As a matter of law, CFI had no further pension obligations with respect to such new CFC Pension Plan participants, including Conkin. 29 U.S.C. § 1058; see also Waller v. Blue Cross of California, 32 F.3d 1337, 1345 (9th Cir. 1994).

In April of 2003, the PBGC took over the CFC Pension Plan and terminated that plan. Conkin must, therefore, apply to the PBGC for pension benefits. Under ERISA he has no standing to sue and no viable claim for pension benefits against CNF, its Retirement Plan, or any other entity, other than PBGC. 29 U.S.C. §§ 1144(a), 1132(a)(1)(B), (d)(1) and (2).

CNF is also entitled to judgment as a matter of law on Conkin's claim seeking to recover employee welfare benefits. The CFI Welfare Benefits Plan terminated coincident with the December 1996 spin-off as to Conkin and other employees or former employees of CFCD. Under ERISA, an employee welfare benefit plan terminates as to employees in a division, where, as occurred here, the division is spun-off to another company that provides welfare benefits. Moreover, the original employer has no responsibility for ensuring that benefits be paid under the new welfare benefit plan. Chiles v. Ceridian Corp., 95 F.3d 1505, 1515-1516 (10th Cir. 1996).

ERISA's preemption clause and exclusive civil enforcement provisions authorize a participant to sue an employee benefit plan in order to recover benefits due to him under the terms of his plan. 29 U.S.C. §§ 1144(a), 1132(a)(1)(B), d(1) and (2). Conkin, however, is not due welfare benefits under the terms of the CNF Welfare Benefits Plan or the terminated CFC Welfare Benefits Plan. Because he is not owed welfare benefits under a plan's terms he is not entitled to sue any entity, including CNF or its Welfare Benefits Plan, for employee welfare benefits. 29 U.S.C. § 1144(a), 1132(a)(1)(B), (d)(1) and (2).

Conkin cannot defeat the defendant's motion for summary judgment by arguing that he has a vested right to LTD benefits. Under ERISA, LTD, health care and life insurance benefits are "welfare benefits," 29 U.S.C. § 1002(1), which do not vest automatically, unlike pension benefits. Congress saw fit, pursuant to ERISA, to grant employers such as CFI and CFC freedom to adopt, modify or terminate welfare benefit plans at will, at any time.Curtiss-Wright Corp v. Schoonejongen, 514 U.S. 73, 78 (1995). "Unless an employer contractually cedes its freedom, it is generally free under ERISA, for any reason at any time, to adopt, modify, or terminate its welfare plan." Inter-Modal Rail Employees Association v. Atchison, Topeka and Santa Fe Ry. Co., 520 U.S. 510, 515 (1997) (internal quotations and citations omitted). The issue of vesting, is one of contract interpretation.

As the provisions set out in the preceding sections of this Order demonstrate, neither CFI nor CFC vested disabled participants in the applicable Welfare Benefits Plan. The express language of the plans reserved the express right to terminate, modify or amend the plan at any time, although it was expected that the plans would continue to provide benefits in the future.

Under ERISA, the plaintiff carries the burden of showing an agreement or other demonstration of employer intent to have company-paid premiums vest under the plan. Chiles v. Ceridian Corp., 95 F.3d at 1511. The instant case present issues not unlike those considered by the Tenth Circuit in Chiles. There the court considered "whether the reservations of rights clause itself, read in tandem with the promise of continuing benefits to participants who maintain a particular status, is ambiguous with respect to the rights of the participants who have attained the status if the reservations does not specifically address alteration of termination of their benefits." Id. at 1512. The circuit court discussed various circuits' considerations of reservations of rights clauses and noted the approaches were varied and often difficult. However, in the case then before the appellate court:

[w]e need not choose between a hard-and-fast rule finding a general reservation of rights clause unambiguously controlling any promise located in another part of an ERISA document, and an approach finding ambiguity unless the plan document spells out exactly whose benefits may be unilaterally altered. In this case, it is clear that Control Data retained the right to change the benefits of all LTD plan participants — including those who had already qualified for long-term disability.

As noted above, the LTD plan's reservation of rights clause contains a proviso. Described in the plan's SPD, it states: "If the group Long-Term Disability Plan terminates, and if on the date of such termination you are totally disabled, your Long-Term Disability benefits and your claim for such benefits will continue as long as you remain totally disabled as defined by the plan." Here, the LTD plan specifically contemplates a situation in which Control Data's discretion to change the pan is circumscribed. We find that the interpretative maxim of expressio unius est exclusio alterius — the expression of one thing is the exclusion of another — properly applies in this case. . . . By explicitly listing a qualification to Control Data's ability to change the LTD plan, it is proper to infer that the right to make other changes to disabled participants' benefits was reserved. While the maxim of expressio unius is not dispositive, it does carry weight. . . . Supporting this interpretation is language in the LTD master plan stating that all "participants" are bound by amendments; under the same section, disabled employees are considered participants. . . . Our conclusion makes particular sense in this case, where plaintiffs' reading of the plan would render the termination exception superfluous; under plaintiffs' interpretation, Control Data may not alter the benefits of disabled participants under any condition regardless of whether the plan terminates.

Plaintiffs suggest that the termination proviso itself vests the benefits of the plan in an employee once he becomes disabled, because the right to benefits cannot be withdrawn by terminating the plan. Contractual vesting of a welfare benefit is an extra-ERISA commitment that "must be stated in clear and express language." . . . The plain reading of this provision clearly pinpoints plan termination, not employee disability as the vesting trigger. Contractual vesting is a narrow doctrine. . . . We are unwilling to hold that the vesting of benefit upon the occurrence of a specific expressed condition (termination) can be read broadly to include vesting generally upon an unexpressed condition (attaining disability). . . . A reasonable person in the position of an LTD Plan participant could read the termination provision in the SPD only as allowing Control Data to modify to terminate the plan when it deems necessary, but if the plan terminates certain benefits may not be withdrawn. . . . Plaintiffs attempt to distinguish the reservation of rights clause in the case at bar from those in which amendment and termination controlled the promise of vested rights. We agree with the district court that the termination clause retained almost unlimited discretion in Control Data to change the plan.

Chiles, 95 F.3d at 1511-1513 (citations and footnotes omitted).

In this case, likewise, CFI and CFC did not provide contractual vesting. Conkin may only rely on the plan documents to support that he has a contractually vested right to the disability benefits he now seeks. Such a contractual agreement is notably absent in this case. No agreement purports to vest him with welfare benefits at all; no agreement vests Conkin with welfare benefits beyond plan termination. No agreement, not even the subrogation agreement entered into in 1993 upon which Conkin relies, modifies or creates rights contrary to the CFI Welfare Benefits Plan. Conkin is not able to carry the burden of demonstrating under ERISA by clear and express plan language that the welfare benefits, including LTD disability benefits he now seeks to recover, are vested.

There is no clear and express language in any plan that contractually vests LTD benefits in a totally disabled plan participant. The reservation of rights clause and plan termination clauses in both the CFI and CFC welfare benefits plans plainly and unambiguously establish that CFI and CFC may terminate the welfare benefits plan, that LTD benefits are not vested, and where the plan(s) is terminated, the payment of LTD benefits, including health care benefits and life insurance coverage, ended when the company terminated the plan. "Express termination language is plainly inconsistent with any employer intent to vest benefits." Murphy v. Keystone Steel Wire Co., 61 F.3d 560, 566-567 (7th Cir. 1995) (holding that retirees' welfare benefits were not vested or owing under a terminated plan which stated retirees were eligible for benefits under certain conditions and that benefits would terminate upon the date the plan is terminated or amended to terminate the retiree's coverage).

As a result, no welfare benefits are vested or owing to Conkin under the terms of the CNF Welfare Benefits Plan or the terminated CFC Welfare Benefits Plan.

ERISA's preemption clause and exclusive civil enforcement provisions only allow a participant to file suit against an employee benefit plan "to recover benefits due . . . under the terms of [the] plan." 29 U.S.C. §§ 1144(a), 1132(a)(1)(B), (d)(1), (2). As demonstrated, the CFI and CFC Welfare Benefits Plants permitted the plans to be terminated at any time and specified that benefits would end on plan termination. Both plans terminated as to Conkin. ERISA, therefore, does not permit Conkin to prevail in his suit to recover these benefits from any party, including CNF. CFC unequivocally reserved the right to amend or terminate its Pension Plan and Welfare Benefits Plan at any time. Pursuant to the plan termination clause, welfare benefits were not vested, but ended when CFC terminated the CFC Welfare Benefits Plan.

The CFC Welfare Benefits Plan was terminated in 2002 as part of the CFC Chapter 11 bankruptcy proceeding. The plan is terminated as to Conkin. Conkin is not owed any welfare benefits under the terms of the Plan, including the reservation of rights clause and plan termination clause.

The CFC Pension Plan was taken over by the Pension Benefit Guaranty Corporation ("PBGC") in April 2003. PBGC terminated the plan, and PBGC began paying pension benefits under its insurance provisions. Plaintiff Conkin is not entitled to any pension benefits under the terminated plan; instead his application for pension benefits should be made to the PBGC under the insurance provisions.

Conkin is not entitled to recover of the defendant and the defendant is entitled to summary judgment in its favor as a matter of law. Accordingly, it is therefore

ORDERED that the defendant's Motion for Summary Judgment shall be, and is, GRANTED.

Judgment shall be entered accordingly.