will also establish a de facto pension plan, whether or not the parties intended to do so”). Still, if the appellant is to succeed, he must show that: (1) there is a plan, fund, or program; (2) “established and maintained by an employer”; (3) with one of the two effects set out in the statute, as quoted above. In other words, the broad statutory definition of a pension plan does not avail the appellant unless he can demonstrate that his employer established or maintained some sort of pension plan. As the statute itself makes clear, however, the plan need not be formalized; the plaintiff can prevail if the existence of a plan can be inferred from the “surrounding circumstances.” 29 U.S.C. § 1002(2)(A); see also, e.g., Donovan v. Dillingham, 688 F.2d 1367, 1372 (11th Cir.1982) (en banc) (<HOLDING>). The Dillingham court was one of the first to
holding that plan administrator of an erisa health plan did not have to anticipate the confusion of a plan participant holding that erisa does not preempt the plaintiffs claim that the erisa plan administrator is liable for medical malpractice where the plaintiff premised the claim solely on state law and did not invoke the erisa plan holding abuse of discretion review is appropriate when erisa plan grants discretion to the plan administrator holding that even if a thirdparty administrator is not a fiduciary under erisa such an administrator still has standing  pursuant to   1331 holding that although erisa requires administrator to maintain written instrument establishing plan such instrument is not a prerequisite  to coverage under the act