Case Information
*1 Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:
In this ERISA case, the Life Insurance Company of North America (LINA)
appeals the decision of the district court holding that LINA abused its discretion
in its denial of benefits to the appellee, Deborah Firman. We have carefully
reviewed the district court’s opinion, heard oral arguments, and considered the
arguments in the parties’ briefs; and we are convinced that the district court
correctly applied the law to the relevant facts and reached the appropriate legal
conclusions. We emphasize the district court’s holding that the common law
definition of “accident” adopted in
Todd v. AIG Life Insurance Co.
,
AFFIRMED. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DEBORAH FIRMAN, §
§
Plaintiff, §
§
v. § CIVIL ACTION NO. H-09-3785
§
BECON CONSTRUCTION COMPANY, §
INC., BECON PERSONAL ACCIDENT §
INSURANCE PLAN/502, and §
LIFE INSURANCE COMPANY OF §
NORTH AMERICA, §
§
Defendants. §
MEMORANDUM AND ORDER
Pending are Defendants’ Motion for Summary Judgment (Document No. 23) and the Cross Motion for Summary Judgment of Plaintiff Deborah Firman (Document No. 53). After having considered the motions, responses, the applicable law, and the administrative record, the Court concludes as follows.
I. Background
Plaintiff Deborah Firman claims, pursuant to ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), that Defendant Life Insurance Company of North America (“LINA”) wrongly denied her the [2]
benefits of her common-law husband’s ERISA-governed Group Accident Policies. Her husband, Gilberto Espinoza, an employee of Houston- based Defendant Becon Construction Company, Inc. (“Becon”), participated in two accidental death and dismemberment policies under the Becon Personal Accident Insurance Plan/502 (the “Plan”) : [3] Group Accident Policy OK 826455 issued to Becon by LINA and LINA Voluntary Personal Accident Insurance Group Policy OK 822833 (together, the “Policies”), both of which named Plaintiff as the [4]
beneficiary. Becon was the ERISA Plan sponsor and administrator [5]
under the plan, but designated LINA as the claims administrator, [6] [7] and both policies conferred upon LINA “full discretionary authority to administer and interpret” both policies. [8]
Both Policies state that benefits will be paid for “loss from bodily injuries . . . caused by an accident which happens while an insured is covered by this policy.” Neither policy, however, [9]
contains a definition of the term “accident.” A. Insured’s Death
Espinoza died in a single-vehicle crash in Kentucky on September 20, 2008. His blood and urine alcohol content were 0.20 percent and 0.35 percent, respectively, at the time of his death, [10] and the investigating officer reported a “strong odor of alcohol” and “an open container of cold Budlight Beer inside the vehicle” upon his arrival. According to the officer’s report, Espinoza’s [11]
truck veered off the roadway to the right upon entering a left curve; Espinoza overcorrected, sending the truck over the road onto the left shoulder, where it rolled over. Espinoza was not wearing [12]
a seat belt, and he was partially ejected out of the passenger-side window and crushed by the vehicle. The crash occurred shortly [13]
after noon in clear weather and dry road conditions. The medical [14] examiner who performed Espinoza’s autopsy opined that the cause of death was “[m]ultiple blunt force injuries,” and marked the death as an “Accident,” which was also reflected on Espinoza’s death [15]
certificate. [16]
B. LINA’s Investigation and Denial of Benefits Plaintiff made a claim for benefits under the Policies, which LINA received on December 4, 2008. It reviewed Plaintiff’s claim, [17]
Espinoza’s death certificate, the police report, the toxicology report, the medical report, and the Policies, then on December 23, 2008, informed Plaintiff that the claim was not covered because it was not an “accident.” LINA interpreted “accident” in the [18]
Policies to mean “a sudden, unforeseeable event,” and stated that [19] Espinoza “would have been aware of the risks involved in operating his vehicle while under the influence” because “every state in the nation has criminalized drunk driving,” and therefore “[a]ll licensed motorists throughout the United States are on notice, by operation of law, of the state-declared prohibitions against drunk driving and its consequences.” The letter stated that Espinoza [20]
had an “alcohol level of 0.35%,” which it asserted was “more than four times the maximum level of alcohol in which it is legal to operate a motor vehicle in the state of Kentucky.” Because [21] Espinoza “would have been aware of the risks involved in operating his vehicle while under the influence, his death was a foreseeable result of his actions and thus not an accident.” [22]
LINA also relied upon the “self-inflicted injury” exclusion in the Policies as a reason for denial. It noted that, by drinking and driving, Espinoza “placed his life and the lives of others in jeopardy” because “[i]t is commonly known that driving while intoxicated may result in death or bodily harm, as intoxication can lead to impaired judgment and decreased reflexes.” His death was [23] therefore “a result of intentionally self-inflicted injuries,” and was excluded by the Policies. [24]
C. Plaintiff’s Appeal
Plaintiff retained counsel and appealed LINA’s decision in January 2009. Her letter of appeal also advised LINA to consider [25]
it “as notice of her claim to pursue litigation, damages, statutory penalties, and attorney fees if this claim is not immediately resolved.” Her counsel pointed out that LINA’s denial letter [26]
improperly compared Espinoza’s urine alcohol content to Kentucky’s legal blood alcohol limit for driving under the influence, and [27] subsequently submitted additional information consisting of affidavits of the investigating officer and medical examiner. [28]
The investigating officer asserted that he believed the curve on the road was dangerous for someone not familiar with the area, noting that he had investigated numerous accidents at the site. [29] He further stated that, based on his investigation, there was no evidence that Espinoza intentionally caused the accident, knew it would occur, or reasonably could have anticipated his death. The [30] medical examiner similarly found no evidence that Espinoza intended his death, nor that he reasonably could have anticipated it, because “‘driving under the influence’ does not naturally and probably lead to the type of injuries” that resulted in his death. [31]
Plaintiff’s counsel also submitted Texas and Kentucky state case law interpreting accidental death insurance policies in the context of alcohol-related automobile crashes, concluding that under the law of either state, Espinoza’s crash would be considered an “accident” under the Policies. [32]
In response to these submissions, LINA informed Plaintiff that it was conducting a “home office review,” which was “needed in order to interpret the documents we have received as they relate to the provision of this policy.” The claims administrator assigned [33]
to the appeal forwarded Plaintiff’s contentions to LINA’s in-house counsel, who responded with a five-page memo labeled “ PRIVILEGED [34]
& CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION .” The memo opined [35] that Plaintiff’s relied-upon state law would be inapplicable to the interpretation of an ERISA policy governed exclusively by federal law: “The standard that claimant advances - one of natural and probable consequences - is not the standard utilized by federal courts applying the common law of ERISA.” It then noted the [36]
absence of Fifth Circuit authority regarding “whether an ERISA insured’s death that occurs while driving when intoxicated is an accident in the context of [an] accidental death benefit plan,” and looked to decisions by the Fourth, Sixth, and Seventh Circuit Courts of Appeal as authority that, if LINA had discretion to make determinations under the Plan, it would not abuse that discretion by concluding that Espinoza’s death was not an “accident” because “a reasonable person would foresee the likelihood of death or serious injury as a result of driving while intoxicated.” The [37] memo also stated that the officer’s and medical examiner’s affidavits were not persuasive, because they were based not “on the facts of the incident, but on their personal view of whether it was natural and probable that Mr. Espinoza could not reasonably have foreseen his death.”
LINA issued a letter to Plaintiff denying her appeal because: Injury or death resulting from driving under the influence of alcohol is considered foreseeable and is not covered by the provisions of [the Policies]. Driving when intoxicated precludes a finding that a death is Accidental. As mentioned previously, the policy defini- tion of a Covered Accident requires that a loss not be foreseeable. [39]
In the letter, LINA again erroneously stated that Espinoza’s “blood alcohol concentration was 0.35%,” which it again asserted was “more than four times the threshold for presumed intoxication while driving in the state of Kentucky.” Finally, the letter advised [40]
Plaintiff that she had exhausted all levels of administrative appeal.
Pending are cross-motions for summary judgment. Plaintiff asserts that LINA abused its discretion in denying her benefits, and further asserts that its denial was procedurally improper due to LINA’s failure to disclose its in-house counsel’s memo sooner. Defendants seek dismissal of all claims.
II. Legal Standards
A. Summary Judgment Standard
Rule 56(c) provides that summary judgment “should be rendered
if the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.” F ED . R. C IV . P. 56(c). The moving party must
“demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett,
Once the movant carries this burden, the burden shifts to the
nonmovant to show that summary judgment should not be granted.
Morris v. Covan World Wide Moving, Inc.,
In considering a motion for summary judgment, the district
court must view the evidence “through the prism of the substantive
evidentiary burden.” Anderson v. Liberty Lobby, Inc., 106 S. Ct.
2505, 2513 (1986). All justifiable inferences to be drawn from the
underlying facts must be viewed in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 106 S. Ct. 1348, 1356 (1986). “If the record, viewed in
this light, could not lead a rational trier of fact to find” for
the nonmovant, then summary judgment is proper. Kelley v. Price-
Macemon, Inc.,
ERISA confers jurisdiction on federal courts to review benefit
determinations by fiduciaries or plan administrators.
See
29
U.S.C. § 1132(a)(1)(B). A plan claims administrator makes two
general decisions when deciding whether to pay benefits:
(1) finding the facts underlying the claim and (2) determining
“whether those facts constitute a claim to be honored under the
terms
of the plan.” Schadler v. Anthem Life Ins. Co., 147 F.3d
388, 394 (5th Cir. 1998) (quoting Pierre v. Conn. Gen. Life Ins.
Co./Life Ins. Co. of N. Am.,
When reviewing the administrator’s second decision--
interpretation and application of the plan language--for an abuse
of discretion, the Fifth Circuit applies a two-step inquiry. Stone
v. UNOCAL Termination Allowance Plan,
297 (5th Cir. 1999) (en banc),
abrogated on other grounds by
Metro.
Life Ins. Co. v. Glenn, 128 S. Ct. 2343 (2008)). “Although we
generally decide abuse of discretion based upon the information
known to the administrator at the time he made the decision, the
administrator can abuse his discretion if he fails to obtain the
necessary information.” Salley v. E.I. DuPont de Nemours & Co.,
In this case LINA operates under a conflict of interest; it is
uncontested both that LINA has discretionary authority to make
claims decisions and that it is responsible for paying benefits
under the Plan.
See
Glenn,
III. Discussion
For support of LINA’s denial of benefits, Defendants rely on
Sanchez v. Life Insurance Co. of North America and Davis v. Life
Insurance Co. of North America, two unpublished Fifth Circuit
decisions upholding LINA’s denial of benefits where the insureds
died in single-car crashes when driving while intoxicated.
Sanchez,
While neither Accident Policy defines “accident,” the Policies do exclude coverage for injuries from certain activities. These include:
• Intentionally self-inflicted injuries • Travel or flight if the insured is a pilot or crew member
• Hang-gliding
• Parachuting (except for self-preservation), and • Commission of a felony by the insured.
Neither Policy excludes coverage for injury when driving an automobile while intoxicated.
LINA in its claim administration used essentially the same definition for “accident” that is written into some of its accidental death policies--such as those in Sanchez and Davis--but which is not found in Espinoza’s Policies, namely “a sudden, unforeseeable event.” Because Espinoza “would have been aware of [48]
the risks involved in operating his vehicle while under the influence, his death was a foreseeable result of his actions and thus not an accident.” LINA denied Plaintiff’s appeal for the [49]
same reason, and further because “[d]riving when intoxicated precludes a finding that a death is Accidental.” In making that decision, LINA gave a legally incorrect definition to the term “accident” and, moreover, abused its discretion by applying a per se rule that death resulting from driving while intoxicated is never an accident, despite the absence of a policy exclusion so stating.
A. Legally Incorrect Interpretation
Three factors bear upon whether an interpretation is legally
correct: “(1) whether the administrator has given the plan a
uniform construction, (2) whether the interpretation is consistent
with a fair reading of the plan, and (3) any unanticipated costs
resulting from different interpretations of the plan.” Stone, 570
F.3d at 258 (quoting Crowell v. Shell Oil Co.,
(5th Cir. 2008)). The “most important” of these factors “is
whether the administrator’s interpretation was consistent with a
fair reading of the plan.” Id. (citing Crowell,
Writing for the Fifth Circuit in Todd v. AIG Life Insurance Co., Justice Byron White held that it was appropriate for the district court to conclude that:
[F]or death under an accidental death policy to be deemed an accident, it must be determined (1) that the deceased had a subjective expectation of survival, and (2) that such expectation was objectively reasonable, which it is if death is not substantially certain to result from the insured’s conduct.
47 F.3d 1448, 1456 (5th Cir. 1995). The Fifth Circuit has also
phrased the test in an alternative manner: “whether a reasonable
person, with background and characteristics similar to the insured,
would have viewed the injury as highly likely to occur as a result
of the insured’s intentional conduct.” Schadler v. Anthem Life
Ins. Co.
The Wickman analysis requires that for a death to be considered “accidental,” the insured must have had the subjective expectation of survival, and that expectation must have been objectively reasonable “from the perspective of the insured, allowing the insured a great deal of latitude and taking into account the insured’s personal characteristics and experiences.” 908 F.2d at 1088. In the more typical case where there is insufficient evidence of the insured’s actual expectations, a purely objective analysis is undertaken as “a good proxy for actual expectation”: the death is not an accident if “a reasonable person, with background and characteristics similar to the insured, would have viewed the injury as highly likely to occur as a result of the insured’s intentional conduct.” Id.
LINA’s interpretation eschews the Wickman approach to defining accident, and is therefore legally incorrect. In Wickman, the starting point was the actual expectation of the insured, limited only by excluding “patently unreasonable” expectations from the definition of “accident,” which equates to situations where death or serious injury is “highly likely.” This compares favorably to the dictionary definition of “accident”: “an unforeseen and unplanned event or circumstance,” or “lack of intention or necessity.” W EBSTER ’ S N INTH N EW C OLLEGIATE D ICTIONARY at 49 (1990). LINA’s interpretation, on the other hand, does not focus the inquiry on what is actually expected or foreseen by the insured, tempered only by patently unreasonable expectations, but rather, on what is foresee able --that is, capable of being foreseen. Further, it does not ground this interpretation in the alternative objective analysis of Wickman, asking from the perspective of the insured whether death or serious injury is “highly likely” to occur, not merely asking whether death or serious injury is “foreseeable.” In short, LINA’s interpretation of “accident” excludes from its bounds not just the “patently unreasonable” expectation, Wickman, 908 F.2d at 1087, but anything that is merely “foreseeable.” This goes well beyond the limited exception to an insured’s actual expectations (or a “proxy” thereof) established by Wickman and followed by the Fifth Circuit in Todd and Schadler. Indeed, there is much persuasive authority pointing to a variety of examples that are commonly considered “accidents” but which would be excluded from being so regarded if events that are merely “foreseeable” or “reasonably foreseeable” were not considered “accidents.”
Furthermore, LINA’s interpretation runs contrary to the
provisions of the Policies, which specifically pay
an additional
10 percent of the insured’s benefits if he or she “dies as a
result of an automobile accident while wearing a properly fastened,
original, factory-installed seatbelt.” It is certainly
“foreseeable” that one not wearing a seatbelt--such as
Espinoza--may die in a car crash, which, by LINA’s definition,
would by itself render that person’s death not an “accident.” Yet,
the Policies specifically provide for
additional
coverage for an
insured who dies while wearing a seatbelt, implying that one who
does
not
wear a seatbelt is covered at the basic amount.
See
LaAsmar,
In sum, LINA made a legally incorrect determination of the undefined term “accident” as it is used in the Accident Policies and Plan that covered Espinoza.
B. Abuse of Discretion
LINA also abused its discretion in denying benefits under the Accident Policies without sufficient evidence in the administrative record to support its determination and by its application of what effectively is a per se rule that drunk driving deaths can never be an “accident” under a policy that contains no exclusion for drunk driving.
Unlike the instant case, Sanchez and Davis involved evidence
supporting LINA’s decision
in addition
to the insured’s blood
alcohol content. In Davis, the administrative record contained a
toxicologist’s findings; the Fifth Circuit therefore held that
LINA’s determination was reasonable “[c]onsidering the
toxicologist’s findings as to the effects of such severe
intoxication.” Davis,
Here, on the other hand, the administrative record is entirely devoid of any evidence--other than Espinoza’s blood alcohol content as compared to the legal limit in Kentucky--regarding whether the crash was foreseeable. In fact, LINA erroneously garbled even this single piece of evidence: rather than comparing Espinoza’s blood alcohol content to Kentucky’s legal limit, LINA cited his urine alcohol concentration and compared it to Kentucky’s legal limit for blood alcohol concentration. LINA repeated this error in its appeal denial letter, after Plaintiff’s attorney had specifically pointed out LINA’s error in its first denial letter. Moreover, instead of considering any other facts specific to the case, LINA effectively adopted a stance that a crash resulting from any blood alcohol content over the legal limit is per se foreseeable, and therefore per se not an “accident.” For instance, its internal notes reveal that LINA presumed Espinoza’s awareness of the dangers of drunk driving (and therefore the foreseeability of his own death resulting therefrom) unless something in the administrative record indicated otherwise:
There is nothing in file to support fact that Mr. Espinoza was not aware of the risks involved in operating his vehicle while intoxicated. Therefore, his death was a foreseeable result of his actions and thus not an accident.
As already observed, LINA’s initial denial letter cited only to Espinoza’s urine alcohol content, and otherwise asserted that “every state in the nation has criminalized drunk driving,” which therefore put “[a]ll licensed motorists throughout the United States . . . on notice, by operation of law, of the state-declared prohibitions against drunk driving and its consequences.” Finally, LINA’s denial of Plaintiff’s appeal flatly states the per se rule it applied in this case:
Having reviewed the available record, indications are that Mr. Espinoza was driving under the influence of alcohol at the time of this motor vehicle crash. This resulted in his death. Injury or death resulting from driving under the influence of alcohol is considered foreseeable and is not covered by the provisions of [the Policies]. Driving when intoxicated precludes a finding that a death is Accidental .
No circuit court considering drunk driving crashes has
approved a claims administrator’s use of a
per se
rule in the
context of ERISA accidental death policies. To the contrary, the
courts consistently have expressed disapprobation for the use of
such a rule.
See
LaAsmar v. Phelps Dodge Corp. Life, Accidental
Death & Dismemberment and Dependent Life Ins. Plan,
The above cases are persuasive, particularly in light of the Fifth Circuit’s instructions that “the administrator can abuse his discretion if he fails to obtain the necessary information,” Salley, 966 F.2d at 1015, and that an administrator abuses its discretion if its “decision is not based on evidence, even if disputable, that clearly supports the basis for its denial.” Holland, 576 F.3d at 246 (internal quotation marks and citation omitted). Accordingly, LINA abused its discretion in determining that Espinoza’s death was not an “accident.”
C. Award
For the foregoing reasons, Plaintiff is entitled to an award
of the Policies’ benefits due under the Plan, plus interest. Defendants have asked for remand to LINA for further review if the
Court “determines the claims decision was not procedurally
correct.” That is not the Court’s decision; to the contrary, this
decision is based on LINA’s abuse of its discretion, not on
a procedural defect. “If an administrator has made a decision
denying benefits when the record does not support such a denial,
the court may, upon finding an abuse of discretion on the part of
the administrator, award the amount due on the claim and attorneys’
fees.” Vega v. Nat’l Life Ins. Servs., Inc.,
Because LINA twice had the opportunity directly to address the
only question at issue--whether Espinoza’s death was an “accident”
under the Policies--and because both times it applied a legally
incorrect definition to the undefined term “accident,” and further
made decisions without sufficient evidence to support its
determination, remand is not appropriate.
Cf.
Schadler v. Anthem
Life Ins.,
However, Plaintiff has established entitlement to an award only from the Plan, not from all named Defendants. See 29 U.S.C. § 1132(d)(2) (“Any money judgment under this subchapter against an employee benefit plan shall be enforceable only against the plan as an entity and shall not be enforceable against any other person unless liability against such person is established in his individual capacity under this subchapter.”). Plaintiff’s motion will therefore be granted with respect to the Plan, but denied as to all other defendants.
Remaining to be determined are whether attorney’s fees should be awarded to Plaintiff under 29 U.S.C. § 1132(g)(1) and whatever remaining cause of action, if any, Plaintiff may have against the other Defendants Becon and LINA.
IV. Order
Based on the foregoing, it is
ORDERED that Defendants’ Motion for Summary Judgment (Document No. 23) is DENIED. It is further
ORDERED that Plaintiff Debra Firman’s Cross-Motion for Summary
Judgment (Document No. 53) is GRANTED in part, and Plaintiff Debra
Firman shall have and recover of and from Defendant Becon Personal
Accident Insurance Plan/502 the benefits payable for the accidental
death of Gilberto Espinoza under LINA Group Accident Policy
OK 826455 and LINA Voluntary Personal Accident Insurance Group
Policy OK 822833, which accidental death benefits the Court
Further, although the Fifth Circuit has held that an employer was
properly named as a defendant (thereby implying the
possibility
of
recovery), it did so under the specific facts where the plan had “no
meaningful existence separate from [the employer] because the Voucher
Plan is funded by the general assets of the partnership,” and where “it
was indisputably [the employer’s] decision” to deny the plaintiffs’
benefits. Musmeci v. Schwegmann Giant Super Mkts., Inc.,
understands from the pleadings total $210,000, plus pre-judgment interest on these benefits from the dates they were due to be paid until the date of Final Judgment. Plaintiff’s Cross-Motion for Summary Judgment is otherwise DENIED with respect to Defendants Becon Construction Company, Inc., and Life Insurance Company of North America. It is further
ORDERED that within fourteen (14) days after the entry of this Order the parties shall jointly provide to the Court an agreed calculation setting forth the amount of the benefits and the pre- judgment interest due under this Order for inclusion in the Court’s Final Judgment. It is further
ORDERED that within fourteen (14) days after the entry of this Order the parties’ counsel shall personally confer in a good faith attempt to reach agreement on whether Plaintiff is entitled to recover attorney’s fees and expenses and, if so, to reach an agreement upon the amount of reasonable and necessary attorney’s fees and expenses that Plaintiff is entitled to recover, if any. The parties shall promptly advise the Court of that agreement. If good faith efforts to reach agreement on attorney’s fees should fail, then Plaintiff’s attorney may file his affidavit for attorney’s fees and expenses and supporting material within twenty- one (21) days after the date of this Order, together with a brief showing entitlement to the same, and Defendant may file a controverting affidavit and supporting materials, and a brief setting forth Defendant’s position, within ten (10) days after having been served with Plaintiff’s affidavit and supporting materials.
It is SO ORDERED.
The Clerk will enter this Order, providing a correct copy to all counsel of record.
SIGNED in Houston, Texas, on this 15th day of April, 2011. ____________________________________ EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
Notes
[1] Plaintiff originally named Becon Group Life and Insurance Plans 054 & 052, and the correct name is hereby substituted. See Footnote 3 below.
[2] LINA is a CIGNA company; hence, some portions of the administrative record refer to LINA as CIGNA, or contain CIGNA headers. See Document No. 23 at 8, Document No. 48 at 7. Because the parties do not treat CIGNA as separate from LINA, the Court for simplicity will use only the initials LINA.
[3] Defendants assert, and Plaintiff does not contest, that the defendant Plan was improperly named in the Complaint as “Becon Group Life Insurance Plan 052” and that Becon Group Life Insurance Plan 054 was named in error. See Document No. 23 at 1.
[4] Document No. 1 at 3 (Orig. Cmplt.); Document No. 23, ex. A at 55, 71, 246-296 [hereinafter “Admin. Record”].
[5] Admin. Record at 172-73.
[6] Id. at 55, 71.
[7] Id. at 40, 68.
[8] Id. at 54, 71. It is uncontested that the Plan’s Summary Plan Description confers discretion upon LINA. See Document No. 1 at 7 (Orig. Cmplt.); Document No. 23 at 4 (LINA).
[9] Admin. Record at 242, 279.
[10] Id. at 181, 222.
[11] Id. at 217.
[12] Id.
[13] Id. at 115, 217.
[14] Id. at 216.
[15] Id. at 229.
[16] Id. at 232.
[17] Id. at 230.
[18] Id. at 207-08
[19] Id. at 208.
[20] Id. at 208-09.
[21] Id. at 208. The toxicology report reviewed at this stage apparently contained only Espinoza’s urine alcohol content, 0.35 percent, but not his blood alcohol content, which was 0.20. See id. at 222; cf . id. at 181. LINA therefore erroneously compared Espinoza’s urine alcohol content to Kentucky’s blood alcohol limit.
[22] Id. at 209.
[23] Id.
[24] Id.
[25] Id. at 160.
[26] Id. at 161.
[27] Id.
[28] Id. at 112-115, 122-23.
[29] Id. at 114-115.
[30] Id. at 115.
[31] Id. at 122.
[32] Id. at 103-06.
[33] Id. at 101.
[34] Id. at 75-76.
[35] Id. at 300 (emphasis in original).
[36] Id. at 302.
[37] Id. at 302-04 (citing and discussing Lennon v. Metro. Life Ins.
Co.,
[38] Admin. Record at 302.
[39] Id. at 98.
[40] Id.
[41] Id. at 99.
[42] Rule 56 was amended effective December 1, 2010 to state, in relevant part, that “[t]he court shall grant summary judgment if 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.” F ED . R. C IV . P. 56(c) (effective Dec. 1, 2010). While Defendants’ motion was filed prior to the effective date of the new Rule 56, Plaintiff filed her motion after the amendments. Nonetheless, the amendments are meant only to “make the procedures more consistent with those already used in many courts,” and “[t]he standard for granting summary judgment remains unchanged.” Id., cmt. 2010 Amendments.
[43] See supra n.7.
[44] See Document No. 48 at 5.
[45] Plaintiff points to eight other cases where LINA has denied benefits, and asserts that it has obtained a potential gain of $2,867,000 from those denials and the denial presently at issue. Plaintiff, however, fails to point to any evidence that LINA’s conflicts in the prior cases influenced LINA’s benefit decisions.
[46] Admin. Record at 244, 281.
[47] The Sixth Circuit in a case similar to this stated the obvious:
The solution for insurance companies . . . is simple:
add an express exclusion in policies covering accidental
injuries for driving while under the influence of
alcohol, or for any other risky activity that the
company wishes to exclude. Policyholders would thus be
able to form reasonable expectations about what type of
coverage they are purchasing without having to make
sense of conflicting bodies of caselaw that deal with
obscure issues of contractual interpretation.
Kovach v. Zurich American Ins. Co.,
[48] Admin. Record at 208.
[49] Id. at 209.
[50] Id. at 98.
[51] As neither party presents substantive argument on the third factor, it will not be addressed. See id. at 258 n.4.
[52]
See, e.g.
, Sanchez,
[53]
See
Todd,
[54]
See, e.g.
, Kovach, 587 F.3d at 335-36 (crash resulting from
driving while text messaging or driving while fatigued); Lennon v. Metro.
Life Ins. Co.,
[55] Admin. Record at 37, 66.
[56] Even this evidence offered only weak support of LINA’s case in Sanchez. The Fifth Circuit noted that this constituted a “lesser amount” of evidence “on the issue of whether or not a crash in these circumstances was an ‘unforeseeable’ event” relative to the evidence on causation of the crash, and also stated that “[a]dditional evidence regarding the foreseeability of a fatal crash resulting from driving under the influence would have strengthened LINA’s decision.” Id. at 233 & n.3.
[57] Defendants request that the Court take judicial notice of a
“‘Kentucky Safety Facts” tip sheet promulgated by the Kentucky Office of
Highway Safety on its official website,” which is a “public record.”
Document No. 44 at 7. The “Safety Facts” tip sheet on a web site is not
a part of the administrative record, and does not fall within the limited
exceptions for evidence not within the administrative record that may be
considered when reviewing a plan administrator’s denial of benefits.
See
Vega v. Nat’l Life Ins. Servs., Inc.,
[58] Admin. Record at 76.
[59] Id. at 209.
[60] Id. at 98 (emphasis added).
[61] In a later case, the Sixth Circuit characterized the Lennon majority as refusing “to impose a blanket standard allowing insurers to consider injuries resulting from any wreck in which the driver is intoxicated as nonaccidental.” Kovach v. Zurich Am. Ins. Co., 587 F.3d 323, 331 (6th Cir. 2009). Indeed, Kovach distinguished Lennon on its facts, including the “most obvious disparity” between the degree of intoxication (0.321 versus 0.148 blood alcohol content), and concluded that the administrator abused its discretion. Id. at 331, 338.
[62] District courts have followed the same reasoning.
See, e.g.
,
Danouvong,
[63] Although ERISA does not expressly provide for an award of
prejudgment interest to prevailing beneficiaries, it is within the
Court’s discretion to award prejudgment interest here because that remedy
is not precluded by ERISA and in fact furthers “the congressional
policies embodied in the act.” Hansen v. Cont’l Ins. Co.,
[64] Document No. 54 at 15.
[65]
See
Williams v. Cent. Cartage Co.,