*1 789 530, 545, 2056, hоlding 106 90 disagrees, 802. The court U.S. S.Ct. L.Ed.2d Evid. (1986) (cited approval, Crawford, ex against the “statement interest” 514 with 804(b)(3). 1354). 58-59, at 124 applies. Fed R. Evid. 541 U.S. S.Ct. Courts ception hearsay exception, accomplices’ blame-spreading rule exclude con Under they inherently because are un purely self-inculpatory not exclude fessions does States, 133-34, trustworthy. Lilly, v. United 527 U.S. statements. Williamson 599-600, 603, 2431, 137-38, 594, 119 give S.Ct. S.Ct. 1887. What would 512 U.S. (1994). Self-exculpatory reliability they L.Ed.2d 476 such confessions —that far exception. against penal do not fall under this were so one’s interest statements Op. They person at 28. are too unreliable that no reasonable would make See Ct. admitted, present even if mixed with ele them —is not when a declarant to be furthers, because or at least thinks he is self-inculpation, “[o]ne ments of further ways ing, is to mix own minimizing the most effective lie his interests his truth, especially truth that participation spreading guilt. Id. at falsehood 131-32, 119 particularly persuasive seems because of S.Ct. 1887. nature.” Id. at 599— self-inculpatory
its
Mr.
right
Smalls has the
to confront Mr.
600,
especially
2431. “This is
S.Ct.
if
government
Cook
uses Mr. Cook’s
implicates
when the statement
some
true
against
confession
him. The Confronta-
601,
Id. at
one else.”
S.Ct.
tion Clause and the Federal Rules of Evi-
confession,
inculpating
while
Mr. Cook’s
hearsay
dence’s ban on
evidence exist to
ways,
purely
was not
in-
himself
some
prevent
upon
convictions based
untrust-
He did not take full and sole
culpatory.
worthy and unchallengeable
evidence.
Rather,
for the crime.
he
responsibility
today
government
The court
allows the
equivocat-
He
participation.
minimized his
through trickery
evade these laws
like,
gave
ed and
excuses for himself
“We
subterfuge.
doing,
so
this court en-
just
primary
playin’.”
Mr. Cook cast
government
ables the
to convict Mr.
responsibility
Melgar-Diaz
on Mr.
and Mr.
Smalls on
unconstitutional basis.
Smalls,
that he himself was
and claimed
I thus would exclude Mr. Cook’s state-
“justa accessory.”
shifting
Statements
ments and affirm the district court.
truly self-inculpa-
are not
blame
others
603,
tory.
Id. at
Cook’s exception, in no small
“against interest”
part [his] because “reasonable
position might implicating even think that practical
someone else would decrease his
604,
liability.”
exposure to criminal
Id.
LaAsmar,
Ronald
and Sandra
LaASMAR
Metropolitan Compa- Life Insurance
ny, Defendants-Appellants-Cross-Ap-
pellees. 07-1267,
Nos. 07-1286. Appeals,
United States Court of
Tenth Circuit.
6,May
under Colorado law. court The district Having jurisdic- overturned that decision. tion under reviewing 28 U.S.C. 1291 and novo, MetLife’s denial of de benefits AFFIRM. (Michael Englert,
Jack M. Jr. S. Beaver I. BACKGROUND LLP, & Hart Greenwood of Holland Vil- CO, lage, and Lowell D. Kass of Metropoli- Mark began working LaAsmar Company, Long tan Life Insurance Island Phelps Dodge Corporation in January briefs), NY, with him City, on the Holland Through Phelps Dodge Defendant LLP, CO, Village, & Hart Greenwood Life, Corporation Accidental Death and Defendants-Appellants-Cross-Appellees. and Dependent Dismemberment Life In- D. Meyer, Hutchinson Black William (“Plan”), surance Plan LaAsmar obtained LLC, Cook, Boulder, CO, for Plain- both life insurance and accidental death tiffs-Appellees-Cross-Appellants. (“AD D”) coverage. dismemberment The Plan contracted with Defendant Met- BRISCOE, Judge, Before EBEL Chief (“Met- ropolitan Company Life Insurance MURPHY, Judges. Circuit Life”) benefits; to provide these was also the Plan’s claims administrator.
EBEL, Judge. Circuit Plan, to the According terms of that “Probably say it is true to that in the Mark AD D pro- LaAsmar’s & insurance dealing region strictest sense and vided security by paying “additional [his] physical nature thing there is no such *6 beneficiary a benefit in addition to life hand, an accident. On the other the aver- insurance if result [he] die[d] as a of an is, age man is convinced that there and so 81.) (Aplt.App. accident.” at The acci- certainly the man policy who takes out a dent be had to “the sole cause of the of accident insurance.” Landress v. Phoe- injury,” “the sole the cause оf covered 491, 499, nix Mut. U.S. Life loss,” and covered “[t]he [had to] loss oc- (1934) (Cardozo, S.Ct. L.Ed. 934 than year cur[] more one after the J., dissenting) (quotations, citations omit- (Id. 82.) date of the accident.” at ted). Plaintiffs Ronald and Sandra In early morning July LaAsmar’s the hours adult son Mark had accidental death insur- single-vehicle LaAsmar died in a part ance as of an employee plan benefit County, crash Grand Colorado. His governed by the Employee In- Retirement death certificate “ap- identified him as the (“ERISA”), Security come Act parent vehicle, 29 U.S.C. a pickup driver” case, (Id. § § 179.) 1001-1461. In this truck must de- owned at LaAsmar. death, cide whether Mark LaAsmar’s in a The other occupant, vehicle’s Patrick crash, O’hotto, one-vehicle was the result of an also The died crash. Colo- plan. “accident” covered under the Defen- rado report State Patrol on the incident Metropolitan dant crash, Life Compa- Insurance indicated at the time of (“MetLife”), ny administrator, plan’s sixty LaAsmar’s truck was traveling miles denied per the LaAsmars’ claim accidental hour straight on a two-lane rural road because, death benefits at time of the where posted speed forty limit was crash, Mark LaAsmar’s per blood alcohol level miles hour. truck traveled off the was permitted almost three times limit right side of road four and rolled then filed suit for breach occupant Neither was The LaAsmars one-quarter times. court, naming of contract in Colorado state belt; eject- they were both wearing a seat both the Plan and MetLife defendants. pronounced were from the vehicle and ed removed the action to federal Defendants cer- the scene. LaAsmar’s death dead at court, preemption; asserting ERISA the “immediate tificate indicated parties agree governs now that ERISA and inter- “[h]ead of his death cause” lawsuit, and we therefore construe the “[bjlunt due to injuries” which were nal a private suit as civil enfоrce- LaAsmars’ consequence of an as a force trauma” under a ment action to recover benefits (Id. “MVA,” accident. or motor vehicle pursuant plan, U.S.C. 179.) opinion It was the the Colorado 1132(a)(1)(B).1 Both sides moved for trooper investigating crash state summary that “no judgment, stipulating toxicology And the alcohol was involved. necessary trial and that the Court [was] a blood report indicated that LaAsmar had should determine the Plaintiffs’ claim (“BAC”) ml, 0.227g/100 content alcohol solely upon based the administrative rec- three times Colorado’s le- which is almost 39).2 ord (Aplt-App. before the Court.” .08, § 42-4- limit of see Colo.Rev.Stat. gal Reviewing de novo MetLife’s decision to 1301(2)(a). benefits, deny AD & D the district court after reversed that determination conclud- Plaintiffs parents, Mark LaAsmar’s ing, among things, other that Mark LaAs- LaAsmar, and Sandra were his Ronald mar’s crash did constitute an “accident” They a claim with Met- beneficiaries. filed 47-48.) (Id. Plan. AD & D benefits. Met- Life for life and 07-1267, appeal MetLife and No. life insurance ben- paid the LaAsmars timely appeal Plan the district court’s or- efits, D AD & benefits for but denied requiring der that accidental death bene- 1) reasons: because Mark LaAs- several paid fits to the LaAsmars. The LaAs- mar’s extreme intoxication contributed 07-1286, cross-appeal, mars No. from the crash, the motor vehicle “accident” was failure rule their district court’s re- 2) death; of his be- not the “sole cause” quests attorney’s for an award of fees and reasonably crash was the fore- cause the *7 prejudgment interest. intoxicated, driving while seeable result of covered under the it not “accident” D II. AD & BENEFITS 3) Plan; with- these circumstances fell A. Review Standard of AD D cov- in the Plan’s exclusion from erage by or contributed summary judgment for “loss caused We review or purpose” novo, on [injuring using to oneself the same standards ders de 83). applied by Kellogg district court. (ApltApp. at the See 1132(a) provides: solely be made on the administrative 1. 29 "A civil ac- should U.S.C. by participant may brought (1) appealed tion Plan the record. MetLife and the — (B) decision, due beneficiary to recover benefits to magistrate judge's which the district —... plan, enforce him under the terms of his to the affirmed. While MetLife and Plan court plan, or rights his the terms of the court's continue insist the district deci- rights clarify under the his to future benefits only should have been made ad- sion plan[.]” terms of record, they have not raised the ministrative appeal court's issue on because district motions, filing dispositive 2. Prior to rely on on the merits did not decision judge handling pretrial magistrate matters objected. discovery they to which permitted discovery, over limited Defendants' objection that the district court's decision 796 Co., 818, in good Kellogg,
v. Metro. Ins. 549 F.3d 825 able and made faith.” Life (10th Cir.2008). here, Where, (internal par- alterations, quota- F.3d at 825-26 omitted). in an both for ties ERISA case moved tions party arguing As the summary judgment stipulated that no review, deferential it more standard necessary, “summary judgment trial is is is MetLife’s burden establish that this case; merely deciding a vehicle for court its should review benefits decision eligibility factual determination ben- issue here arbitrary-and-capri- under an solely on efits is decided the administrative cious standard. See Gibbs ex rel. Estate of record, non-moving party and the not 571, Corp., v. Gibbs CIGNA 440 F.3d to the usual fa- entitled inferences its (2d Cir.2006). Ass’n,
vor.”
v.
Shipping
Bard Boston
(1st Cir.2006) (internal
229,
quo-
procedural
irregularities
1. Whether
omitted). Further,
tation
no
accord
warrant de novo review
deference to the district court’s decision.
court
district
held
v. Aetna
Sandoval
& Cas. Ins.
Life
terms of the Plan
not delegate
did
discre
(10th
Co.,
377,
Cir.1992).
967 F.2d
tion to MetLife to make benefits decis
court,
“Like the district
we must first
presents
question,
ions.3
This
difficult
determine the appropriate standard to be but one we need not
Assuming,
decide.
applied
deny
[MetLife’s] decision
deciding,
without
the Plan vested
Group
benefits.”
v.
Weber GE
Assur
Life
discretion,
MetLife with such
there were
(10th
Co.,
ance
Cir.
“procedural
irregularities”
here —Met-
2008). We determine de novo what that Life’s
to comply
failure
with ERISA—
standard should be. See Rasenack ex rel. mandated time limits in deciding the
Tribolet v. AIG
appeal
LaAsmars’ administrative
re
—that
(10th
1311, 1315
Cir.2009).
quire
apply
us to
de
same
novo review
required
that would be
if
denial of
discretion was
“[A]
benefits” covered
ERISA “is to
vested MetLife.
be reviewed under a de
novo standard unless the benefit plan
The LaAsmars filed their claims with
gives
fiduciary
the administrator or
discre
September 8, 2004,
MetLife on
life
seeking
tionary authority to
eligibility
determine
AD
initially
& D benefits. MetLife
for benefits or to construe the terms of the
AD D
denied the claim for
in a
& benefits
plan.” Firestone Tire &
Rubber Co.
letter dated October
Bruch,
101, 115,
489 U.S.
109 S.Ct.
explicitly provided
The Plan
(1989).
L.Ed.2d
the plan
Where
LaAsmars could administratively appeal
gives the administrator discretionary au
*8
MetLife,
that
giving
sixty
decision to
them
however,
thority,
employ
“we
a deferential
days from
receipt
the
of the initial denial
review,
standard
asking only
of
whether
timely
to do so. The
sought
LaAsmars
the denial of
arbitrary
benefits was
appeal
administrative
with
in a
MetLife
(in
Weber,
capricious.”
797 has on occasions re final This court several with its [the claimant] and write to novo, days notwith within 60 of viewed a benefits denial de binding decision letter,” request or in fact the Plan afforded receiving standing review the that [the] 4, case, February approximately to make bene this the administrator discretion 89.) at (ApltApp. determinations, 2005.4 pro there fits where were irregularities in the administra cedural sixty-day deadline Met- The Plan’s the benefits claim. tor’s consideration of adminis the LaAsmars’ to decide earlier version of 29 C.F.R. Applying an ERISA’s re stems from appeal trative 1(h)(4)(1998), § this court first accordance with 2560.503— quirement “[i]n upon novo based the Labor], applied de review Secretary [of of regulations duty of its deliver shall ... insurer’s breach plan benefit every employee any timely decision Gilbert opportunity a reasonable administrative afford Inc., 625, Signal, claim for benefits has v. whose son Allied participant (10th Cir.2003). Gilbertson, a full and fair review denied for In been fiduciary of appropriate named by the ad insurer never decided the claimant’s claim.” 29 denying the the decision appeal. id. 628-29. ministrative 1133(2); § Health Inc. see Aetna U.S.C. Notwithstanding that fact and well after Davila, 220, 124 S.Ct. 542 U.S. limit, sixty-day expiration time (2004). The Sec 159 L.Ed.2d filed chal claimant suit ERISA that implementing retary’s regulations claim. lenging the denial of her See id. for review obli opportunity” “reasonable so relying The claimant did 629-30. things, among other require, gation 2560.503-1(h)(4) § the version of C.F.R. administrator notify plan “the time, provided which in effect at that plan’s benefit deter ... of claimant appeal administrator’s decision when an within a reasonable on review mination furnished, timely the claim would was not time, than 60 but not later period Gilbertson, 328 F.3d be “deemed denied.” of the claimant’s re days receipt after case, fact despite In that at 629-30. plan.” review quest vested plan terms of the issue 1(i)(1)(i)(2002). C.F.R. 2560.503— determine the insurer discretion benefits, we reviewed Plan’s denial however, case, did not In this MetLife “the de novo because administra benefits ap- the LaAsmars’ administrative decide decision [occurred] tor’s ‘deemed denied’ 26, 2005, days after May until peal [by the by operation of law rather than review, more than sought had they exercise discretion.” administrator’s] long permitted under the three times as Gilbertson, thus, Id. at 631. held regula- ERISA Plan and the terms review,” it where was other- “deferential tions.5 period days end of the initial letter from 4. MetLife's October denying AD D initially period.” their of the Plan also in- LaAsmars Id. terms sixty-day deadline for reiterated this claim possibility of such extension. clude the ap- respond administrative MetLife to case, however, never asserted peal. any "special were circumstances” that there *9 extension, nor might have warranted permit regulation relevant does 5. The formally seek such an exten- did ever MetLife period this time plan to extend administrator however, had, ad- if it MetLife's sion. Even "special sixty days if circumstances another appeal would still determination ministrative (such hearing),” require to hold a as the need fifty days late. have been (2002). l(i)(l)(i) § it. C.F.R. 2560.503— extension exceed "[i]n But no event shall such warranted, only applies wise “in in- those istrator never issued decision on the stances where administrator’s decision claimant’s appeal. administrative See Kel ‘a [actual] is an exercise of discretion vest- logg, Kellogg, 827-28. In this by ed in the instrument under [it] which applied court de novo standard review ” Firestone, (quoting circumstances, [it] act[s].’ Id. 489 under those notwithstand (internal quota- U.S. S.Ct. 948 ing plan at issue vested “sole omitted)). emphasis tions and Gilbertson’s plan discretion” administrator holding on was based the sensible notion eligibility. determine benefits Id. at 826- “plan that an ERISA administrator is entitled of arbitrary to the deference Kellogg, Unlike Gilbertson and how- capricious review when [the administra- ever, in this case MetLife did issue deci- appeal[ tive] ‘deemed denied’ be- ][was] denying sion the LaAsmars’ administrative cause the administrator made no decision appeal, a decision to which this po- court may to which a court defer.” Finley defer; however, tentially could is-
Hewlett-Packard Co. Employee Benefits sued that decision in a belated manner. Plan, Org. Income Prot. circumstances, Under these we still decline (10th Cir.2004). review; apply a deferential standard of Secretary Labor rеvised instead, we will review MetLife’s benefits 2560.503-1, § C.F.R. effective in denial de novo. that revised regulation ap- version this The facts our case are similar to those plies here. The revision eliminated the presented case, in Rasenack. In that “deemed denied” language and now the applied a de novo standard of review under regulation instead provides § the new of 29 version C.F.R. 2560.503- the case of the failure a plan [i]n 1(J) (2002), though even the administrator establish follow claims procedures eventually belatedly but issued a decision consistent with the requirements of this denying a appeal, claimant’s administrative section, a claimant shall be deemed to albeit already after the claimant had filed have exhausted the administrative rem- Rasenack, suit under ERISA. See plan edies available under the and shall Importantly, F.3d at 1314-18. we noted pursue any be entitled to available reme- relevant fact “[t]he is that admin 502(a) dies under section of the Act [29 istrator failed ‘render a final decision 1132(a) § U.S.C. on the ] basis that the temporal within prescribed by limits’ plan has provide failed the Plan and (quot ERISA.” Id. procedure claims yield that would a deci- Gilbertson, ing 631; 328 F.3d at alteration on sion merits the claim. omitted). Rasenack, we further noted (2002) §
29 C.F.R. (emphasis 2560.503-1© added). regulation, predeces- This like its permitting plan administrators to avoid sor, protects a claimant insuring that de by belatedly novo review denying an appeals process administrative does appeal passed after the deadline has not go indefinitely. Gilbertson, on the claimant has filed suit would conflict F.3d at 635-36. purposes, the ERISA’s stated court,
Recently, applying namely the re- “protect[ing] ... the interests of vised 29 C.F.R. relying participants but in employee plans benefit 2560.503-1© reasoning expressed beneficiaries, first earlier and their establish- Gilbertson, employed a conduct, de novo standard ing standards of responsibility, of review in another obligation case where the admin- for fiduciaries of employ-
799
MetLife’s
substantial
for
2. Whether
by providing
and
plans,
ee benefit
compliance
procedural
with these
remedies,
sanctions, and
appropriate
requirements permits it to avoid
courts.”
ready
to the Federal
access
review
de novo
1001(b)).
§
(quoting
1318
29 U.S.C.
Id. at
Al-
applies here.
reasoning
That same
argues
despite these
MetLife
eventually denied
MetLife
though
irregularities,
substantially
it
procedural
review,
administrative
claim on
LaAsmars’
requirements
a time
complied with the
time
substantially
so
outside the
it did
appeal.
our earli
ly administrative
Under
it with
the Plan vested
within which
period
pre-2002
ver
precedent applying
er
Plan.
interpret
apply the
and
discretion
2560.503-1,
§
of 29
this court
sion
C.F.R.
Thus,
the discre-
acting
it was not
within
hair-trigger
“a
rule” re
apply
declined
Gilbertson,
by
Plan. See
provided
tion
plan
de novo review whenever the
quiring
F.3d at 631.
328
discretion,
administrator,
vested with
respect
comply
by
the De-
failed
is bolstered
Our conclusion
indication,
regulation.
mandated
this
revising procedures
of Labor’s
partment
Instead, if
2560.503-l(Z),
clarify
Finley,
F.3d at 1173.
See
§
it intended “to
court
that the administra
regu-
concluded
procedural
minimums
compli
was in
tor’s decision
“substantial
procedural
are
fairness
lation
essential
deadlines, then, if
ERISA
oth
in the absence
ance” with
that a decision made
and
warranted, we
still afford
protections
would
procedural
erwise
the mandated
the benefits decision. See id.
any judicial
deference to
not
entitled to
be
should
def-
arbitrary-
(applying
at 1173-75
deferential
Benefits
erence.” Pension
Welfare
70246-01,
Administration,
and-capricious standard of review notwith
Fed.Reg.
added).6
2000)
(Nov.
appeal
standing that administrative
was
(emphasis
argues
exercise of discretion
Citing
Finley,
that it is
the administrator’s
produced
ap-
denial
to deferential review of its
would have
on administrative
still entitled
reasoning
AD & D claim because
peal
of the LaAsmars'
and result the ad-
same
—the
meaningful
provide any
not
LaAsmars did
claim
ministrator stated earlier in
initial
any significant new
evidence nor raise
new
(applying
id.
McGarrah v. Hart-
denial. See
request
in their
administrative
(8th
issues
F.3d
ford Life
Finley,
appeal.
In both Gilbertson
Cir.2000), abrogation
grounds recog-
on other
administrator failed to address
claimant's
v. Unum
Ins. Co.
Chronister
nized
timely
appeal
administrative
in a
manner
Am.,
Cir.2009)).
(8th
appeal was
“deemed denied”
so
Finley
We are
to extend
because
reluctant
the earlier version
29 C.F.R. 2560.503-1.
recognizes
the value of
administra-
ERISA
Gilbertson,
1172;
Finley,
379 F.3d at
timely
look at a claim on admin-
tor's
second
at 631 & n. 4. While Gilbertson declined
F.3d
legal
appeal, even if no new facts or
istrative
review to
"deemed
to afford deferential
Nevertheless,
arguments
advanced.
even
are
decision,
the administrator
denied”
because
must,
Finley,
Finley
inap-
accepting
as we
discretion,
actually
see
never
exercised its
had
posite
here because
this case
LaAsmars
631, Finley
afford more defer-
328 F.3d at
did
their re-
significant
did raise
new issues in
there the
ential review because
administrator
review,
including
quest for administrative
deny-
initially
had exercised its discretion in
arguments
claimant,
their
that their son
claim,
requesting
ing
and the
crash,
that even if he was
at the time of
present
appeal, failed to
an administrative
driving,
was no evidence that his intoxi-
there
meaningful
significant
either
new evidence
wreck,
AD &
cation
their
caused
appeal,
see
new issues on administrative
analyzed
claim
under Wickman
D
should
Finley
defer-
afforded more
1174-75.
Co., 908
National
Insurance
concluding
already
Northwestern
ential review after
(1st
1990).
reasoning
F.2d 1077
Cir.
decision
and ultimate
knew what
*11
satisfy
and thus administrator
that will
“deemed denied”
kinds
information
Gilbertson,
ruling
did not exercise discretion in
on the administrator.”
328 F.3d
Gilbertson,
Instead,
appeal);
claimant’s
see also
in response
at 636.
to the LaAs-
not
F.3d at 634-35. We need
decide
attorney’s
asking
mars’
letter
about their
doc
compliance”
whether that “substantial
appeal,
administrative
MetLife indicated
applies
regulation
trine still
to the revised
only
it
that was still
It
evaluating
case.
here,
2560.503-1,
§
at
29 C.F.R.
be
issue
appear
does not
that MetLife ever at-
assuming
apply,
cause even
it does
Met-
tempted
gather any
additional evidence
substantially
not
with
comply
Life did
here
eventually denying
before
the LaAsmars’
timely
of a
requirement
ERISA’s
resolu
appeal.
administrative
appeal.7
tion
In our
administrative
reasons,
For these
will review
we
Met-
addressing
prior regulation,
cases
deny
Life’s decision to
the LaAsmars’
substantially
that an administrator
stated
AD
claim for
& D benefits de novo because
complied if
procedural irregularity
comply substantially
MetLife failed to
“(1)
(2)
‘inconsequential’; and
con
l(i)(l)(i),s
§
29 C.F.R.
deadline
2560.503—
on-going, good-faith
text of an
exchange of
deciding
ap-
claimant’s administrative
information between the administrator and peal.
Finley,
the claimant.”
tension of
as 29 C.F.R.
2560.503-
1(i)(1)(i)permits.
sugges
here,
And there is no
The AD & D Plan at issue
was,
tion
the record that
during
any
contract,
Metlife
like
insurance
policy, is a
delay,
engaged
on-going
agreement
in “an
pro
between
Plan
par
and its
ductive
evidence-gathering
process
ticipant. See
Salisbury
Hartford Life
Co.,
(10th
kept reasonably
which the claimant is
well- Accident
583 F.3d
Cir.2009).
informed
to the status of the claim and
In interpreting
agreement,
Cir.2009)
Kellogg,
open
that,
question
(noting
we left
because claimant
"
compliance’
whether
'substantial
rule”
any noncompliance,
"failed to show
we need
applicable
remains
under the revised 2002
compliance
not consider whether substantial
regulations,
Kellogg,
ERISA
because
even if
January
is sufficient under the
2002 revisions
compliance
ap-
the "substantial
rule” still
ERISA”); Rasenack,
plied, there was no
there
doubt
that “MetLife
(noting
because the administrator failed
compliance’
was not in 'substantial
with the
test,
compliance
the substantial
this court did
ERISA deadlines” because the administrator
need
decide whether "a minor violation
that case never issued
decision on the
procedural irregular-
of the deadlines or other
appeal.
claimant's administrative
ities would entitle the
to de
claimant
novo
825, 827-28; see also Hancock v. Metro. Life
amendments”).
review under the 2002
(10th
n.
*12
of
injury,
independent
other
parties’ intent at
accidental
the
we must determine
omitted).
(quotation
Id. at
it.
Blair
causes.”
into
See
v.
they entered
the time
1219,
But
from AD
D
Co.,
plan
excluded
&
Ins.
974 F.2d
Metro. Life
“any
Cir.1992).
coverage
loss caused or contributed
(10th
pol-
Because
insurance
by
insurer, however,
physical
or mental
illness or
by
our
the
icy is drafted
infirmity,
diagnosis
or the
or treatment of
unilateral-
provider
what the
inquiry is not
infirmity.”
(quotation
or
mean,
such illness
Id.
terms of the Plan to
ly intended the
omitted).
Kellogg,
In
MetLife denied AD
posi-
in the
a reasonable
but what
D&
benefits because
decedent’s
“[t]he
have
participant
of
would
under-
tion
the
illness,
Rasenack,
seizure,
physical
the
was the cause
terms to mean.
stood those
See
(quotation
of the crash.” Id. at 823
omit-
at
ted).
decision to
reviewing
In
MetLife’s
court,
the
reviewing
denial of
This
bene-
benefits,
deny
we are limited to consider
novo, applying
meaning”
fits
the “plain
de
for
ing only
given by
the rationale
MetLife
language
plan,
of
and construing
Kellogg, 549
at
that denial. See
828-
insurer,
strictly against
terms
re-
turn, then,
three reasons
29. We
id. at
versed. See
828-33.
why
denied the LaAsmars’ claim
(Brad
death)
Here, the
Kellogg’s
loss
AD D benefits.
for
&
by
resulting
was caused
a skull fracture
accident,
car
by physical
from the
was the “sole
1. Whether
crash
mental
illness.... While the seizure
death
cause”
Mark LaAsmar’s
crash,
may have been the cause of the
it
first
that MetLife de
reason
not the
Kellogg’s
cause
Brad
claim
AD & D
nied
LaAsmars’
for
death. The Plan does not contain an
was because MetLife concluded
benefits
due to accidents that
exclusion
losses
cause of
that “the crash was not
sole
illness,
by physical
were caused
but
loss,”
required by
(Aplt.
policy
only
rather excludes
losses caused
82).
that Mark
at
MetLife concluded
App.
there
physical illness. Because
is no
“extreme intoxicated state was
LaAsmar’s
that the seizure caused Brad
evidence
(Id.
103-04.)
contributing
factor.”
death,
argument
Kellogg’s
MetLife’s
fails.
reasoning in Kel-
rejected
We
this same
issue
policy
The fact that the
here
logg Metropolitan
Insurance
Life
that were caused or con-
excludes losses
(10th Cir.2008).
Kellogg,
dent” as
Plan
causally
deaths that are
related to the
ingestion of
reasonably
alcohol
could
The second reason MetLife denied
accidental”);
be construed as not
Danou
the LaAsmars AD & D benefits was be
vong ex rel. Estate
Danouvong v.
cause it
Mark
concluded
LaAsmar’s death
Life
Am.,
318,
Ins.
N.
Co.
659 F.Supp.2d
“Here,
was not the result of an “accident”:
(D.Conn.2009) (holding plan
admin
the decedent’s BAC was over two times
istrator’s denial of
arbitrary
benefits was
the lawful limit.
im
Driving while so
capricious
because the administrator
paired rendered the infliction of serious
in effect applied
per
a
se rule treating all
injury
death reasonably
foreseeable and
non-accidental).
driving
drunk
deaths as
hence,
contemplated
not
accidental as
assertion, in
MetLife’s
its
denying
decision
103.)
the Plan.”
(Aplt.App.
the LaAsmars’
appeal,
administrative
that
Declining
per
adopt
a.
a
se rule
driving while as drunk as Mark LaAsmar
legal
was—almost three times the
limit for
As a starting point,
argue
the LaAsmars
injury
BAC—makes serious
or death rea
that
denying
MetLife erred
their AD &
sonably foreseeable and
not
thus
acciden
D claim
upon
based
a blanket
all
rule that
tal, suggests that
applying
MetLife was
occurring
wrecks
while the driver has a
a per
solely
such
se
upon
rule based
approximately
BAC of
legal
times
2.8
degree
reject
of intoxication involved. We
limit is not an “accident.” Courts have
this interpretation
D policy.
AD &
consistently rejected
rule,
per
such a
se
as
would we.
Stamp
v. Metro.
Ins.
Life
person
b. Whether a
reasonable
Co.,
(1st
84,
Cir.)
91 & n. 9
position
Mark LaAsmar’s
would
(rejecting “categorical
determination
have understood the term “acci-
all
per
alcohol-related deaths are
se acci
dent,” as used in this AD
D&
—
denied,
nonaccidental”),
dental or
cert.
Plan,
to cover the crash at issue
U.S.-,
129 S.Ct.
the AD Weber, whole, see nack, making at 1318. speaking generally, determination, language we look position Mark LaAsmar’s would have un- Plan, D provided AD & benefits which language of the Plan derstood from to an acci- death is due insured’s] “if [the did include the term “accident” 75.) The Plan (ApltApp. at ex- dent.” intentionally a loss. causing conduct provides D that “AD & insurance plained might fact that there be an addi- And the in- security by paying [the additional *14 paid wearing a belt tional benefit seat in beneficiary a benefit designated sured’s] to a suggest person would reasonable insured] to insurance if [the addition life AD D the standard & benefits would (Id. an at as a accident.” result die[s] available, if plan participant even did 81.) provided further that “[a]n The Plan not take affirmative action minimize may be pay- & benefit [AD D] additional clues, Beyond risks he undertook. those life results insured’s] if the of [an able loss plan’s language, derived from the about driving or injuries sustained while from parties what intended “accident” to if car riding passenger [the in a private mean, however, we are left to determine fastened.” properly seat belt was insured’s] 83.) (Id. in LaAs- Plan excluded from what a reasonable Mark And the by ... caused or coverage position by D “death mar’s would have understood AD & Rasenack, by” things, number contributed the term “accident.” attempt or sui- including “[s]uicide at 1318.
cide,” “[i]njuring purpose.”9 and oneself determination, making In
(Id.)
however,
did not define the
Plan
“accident,”
must
consider whether that term as
though
even
it is
cru-
first
word
avoidable,”
Douglas
easily
R.
courts must' “refrain from
presents to
See
Rich
others.
mond,
Bog:
Intoxi
allowing
judgments
"Drunk in
Serbonian
our moral
about drunk
Acci
cated Drivers’ Deaths as Insurance
dents,”
[plan
driving to influence our review of the
(Fall
U.L.Rev.
Seattle
interpretation of the relevant
administrator's]
2008)
legislature's
(noting that it is the
"crim
provisions”).
Plan
driving”
drunk
that focuses on
inalization of
others).
pose
drunk drivers
the risk that
specifically,
Plan
from
9. More
excluded
"Resolving
questions for insurance
accident
coverage
or
AD & D
"death
caused
purposes
to societal norms or to
reference
1) “[d]iagnosis
by:”
or treat-
contributed to
deterring
policy
public
unde
advance
illness;” 2)
physical
"[[In-
ment of a
or mental
illegal
or
behaviors leads
inconsis
sirable
tent,
fection, except from an accidental cut or
unfair,
Douglas
and
R.
often
results.”
wound;” 3)
any attempt at sui-
"[s]uicide or
Richmond,
Sex,
"Drugs,
and Accidental
cide;” 4)
5)
purpose;”
"[[Injuring oneself on
Insurance,” 45
& Ins. Prac.
Death
Tort Trial
medicinе;” 6)
any drug
"[t]he
"[flak-
use of
or
2009). Here,
(Fall
only ques
L.J.
assault;”
ing part
felony,
in a
crime or
serious
whether,
at issue
when Mark LaAsmar
tion
is
action,
7) "[w]ar,
peace,
in
or warlike
time of
AD
agreed
participate
in MetLife's
& D
acts;” 8) "[a]ny poison
including terrorist
or
coverage,
reasonably
would have
believed
he
taken,
voluntarily
gas
administered or ab-
that,
die in a vehicular crash under
should he
sorbed;” 9)
in the armed forces of
“[s]ervice
here,
issue
circumstances
any country
authority, except
or international
pay
AD & D benefits.
would
his beneficiaries
Guard;”
10)
United
and
States National
Zurich Am.
See Kovach v.
pilot
or crew member.”
(6th Cir.2009)
travel as
although
“[a]ir
(noting
ill-advised,
83-84.)
(Aplt.App.at
dangerous,
driving
“drunk
is
(D.R.I.2000)
ambiguous
the Plan used it is
(noting,
addressing
case
presented
circumstances
here.
id.
See
whether AD & D benefits should be
so,
doing
we again consider the common awarded after insured
died
vehicular
word,
ordinary meaning
of the
as a
drunk,
crash while
“that the word
person in
position
‘accident,’
when used
the context of an
participant would understand it. See id.
policy,
plain
insurance
does not have a
light,
ambiguous
In that
a term is
if it “is ordinary
Wickman,
meaning”); see also
reasonably susceptible to more than one
(in addressing
Surely there can
question
be no
undesigned, unintentional,
terms such as
“accident,”
term
case
as used
Lennon,
unexpected”);
504 F.3d at
case,
applied
in this Plan and as
to this
J.,
(Clay,
dissenting)
627 & n. 2
(noting, in
ambiguous.10
Stamp,
805 proferentem, which construes all ambi- agree”); Fegan tra people could sonable drafter, Am., against 945 here.11 guities applies” Co. Mut. Assurance State (not (D.N.H.1996) Rasenack, 396, 397, (quotation F.Supp. omitted). due addressing impos- whether death in case This is because “ERISA ing, surgery fiduciary the re providers duty from similar complications upon es accident, generally that “[w]hat the one owe trust sult of trustees beneficiaries. ‘accident,’ as term is as an qualifies dealings as a trustee must conduct Just his providing insurance policies beneficiary degree used with the utmost death, be one appears accidental against honesty transparency, an ERISA simple philosophically complex more clearly delineate provider required Richmond, 45 questions”). generally See obligations.” at 1318— scope its Id. Prac. omitted). Trial & Ins. L.J. Tort strictly (quotation We also acci terms accident and (noting “the against insurance construe contracts elusive,” incredibly are insurer, dental light unequal bargaining as deter issues so confound courts “few position parties. Kellogg, when deaths are be considered mining at 830. Applying F.3d the doctrine policies for of insurance purposes accidents constru- proferentem “[sjtrictly contra coverage”); death affording accidental ing ambiguous presents pro- terms ERISA Schuman, Influ “Dying Under the Gary awith alternative: draft plans viders clear Driving Drunk Accidental ence: people can understand or that reasonable Insurance,” Tort Trial & Rasenack, Death pay ambiguity.” 2008) (Fall (noting that omitted); Prac. L.J. (quotation also Mil- at 1320 see underwriters, courts and insurance ler, *16 at 1254. to
years, attempted th[e] “have answer It not much to ERISA is too ask of an simply of “what is question” apparently explicitly insurers to set forth what is and ”; noting bodily injury’ further ‘accidental an AD & by not accident covered their is “[tjhere ‘ordinary’ probably is no that unambiguously policy, D and to state upon everyone of which meaning ‘accident’ disability by death and caused whether at in the of acci agree, can least context and, drunk is an accident insured’s plans”). or benefit dental death insurance not, of if to include a workable definition Co., But McLain v. Metro. Ins. cf. Life causation drunkenness and of attributed (D.N.J.1993) 170-71, F.Supp. Miller, 502 F.3d at such drunkenness. addressing in acute (holding, ease whether (noting signif- “ERISA ... gives that an for to cocaine was “accident” reaction providers by preempting icant benefits to benefits, AD “acci of & D term purposes of which many state law causes action policy AD & D as used dent” liability than considerably greater threaten ambiguous). not for by that allowed ERISA” return reviewing employees the interests of “promoting] Because we are in employee and their bene- benefits de novo and beneficiaries MetLife’s denial of plans protecting] “acci contractual- that term fits because we conclude benefits”) alterations dent,” ly (quotation, at in this defined in the Plan issue as used omitted). case, ambiguous, doctrine of con- “[t]he is however, parties any point to plan’s language ambiguous none of the "Where a
11.
face,
may
might explain
[also]
courts
turn to extrinsic
that
what
its
extrinsic evidence
Miller,
parties’
of
intent....”
evidence
they
by
[the]
"accident.”
intended
Here,
omitted).
(quotation
F.3d at
term,
we
policies
always
doing
are almost
but in
so
construe the
Insurance
specialists
by
meaning of that
term in the
by
employed
LaAsmars’
drafted
light
exper-
against
general
insurer.
of the drafters’
favor and
MetLife.12 See
experience,
ly
tise and
insurer should
v.
Senkier
Accident
Life
Hartford
Co.,
(7th
expected
any
be
set forth
limitations
Ins.
1052-53
Cir.
1991)
liability
(in
a
clearly enough
on its
com-
“a
deciding whether
medical mis
”
understand;
if it
layperson
mon
fails
hap
an
acсi
purposes
‘accident’
of
[is]
this, it
benefits,
to do
should not be allowed to
rejecting
legal
dental death
other
advantage
very ambiguities
take
question
tests and instead
“leaving]
prevented
great-
that it could have
understanding
common
as
revealed in
diligence....
practice
insurer’s
er
[A]n
speech”;
noting
common
further
that “[a]
forcing
guess
the insured to
and hope
lay person has a clear if
under
inarticulate
regarding
scope
coverage requires
standing of the difference
an acci
between
any
in favor
doubts be resolved
illness,
death
a
dental
death from
party
placed
who
such
has been
understanding
will not
altered or
predicament.
judicial
improved
head-spinning
efforts
definition”)
omitted).13
(quotation
(quoting
Id.
Kunin
Benefit
(9th
Trust
Plan,
Under the terms
at the non-
Cir.1990)).
expect,
end
the spectrum,
accident
then,
Here,
determining
deciding,
whether the without
a reasonable
crash
issue
this case was
“acci- would think the
were
following
not “acci-
dent,” we
if
intentionally
consider the common
ordi-
dents”:
the insured
caused
crash;14
nary understanding
“accident,”
of the word
if the
died
insured
as a result
roulette;15
playing
as a reasonable insured would understand
if
Russian
inquiry
adopt
12. This is an
are
do
courts
well
We
broad
definition of
"accident” as the district court did
con-
suited
resolve. Courts make similar deter
cluding that
used
"accident” as
in the Plan
many
minations in
different contexts. For
involving a
meant
event
motor vehicle.
instance,
may
in tort cases
court
have to
*17
decide,
law,
as a matter of
what a reasonable
15. Our conclusion here
bolstered
is
person knew or
have
would
done under the
reaching
near unanimous consensus of courts
presented
given
circumstances
in a
case. See
Although
sug-
this same conclusion.
statistics
Inc.,
Wagner
Sports,
v. Live Nation Motor
586
gest
person playing
that a
Russian roulette
1237,
(10th Cir.2009) (applying
F.3d
1243-45
ordinarily
dying
has a one-in-six chance of
once),
judgment
Kansas tort law to motion fоr
(assuming they
just
as a
played
we are con-
law,
50,
would,
that a
matter of
under
on
fident
reasonable
none-
Fed.R.Civ.P.
tort
theless,
-
conduct),
denied,
playing
conclude death while
Russian
claim for wanton
cert.
Stamp,
roulette is not an accident.
-,
2405,
U.S.
S.Ct.
130
-L.Ed.2d
(noting
though,
at
that
92-93
even
a
"[f]rom
(U.S.
2010) (No. 09-1038);
May
McDer
standpoint,
dying
statistical
likelihood
Inc.,
Mgmt.,
mott v. Midland
F.2d
single
a
from
round
Russian roulette is
(10th Cir.1993)
(addressing summary
six,”
play
16%—one
thus "those who
judgment
negligence
brought
on
claim
chance,
Russian roulette have a decent
statis-
law).
Kansas
injured,”
tically speaking,
being
of not
never-
publicly
theless "such a death would not be
Senkier,
In
the Seventh Circuit answered
accident”)
regarded
(quotation
as an
omit-
question of
mishap
whether "a medical
that,
ted);
(noting
Eckelberry,
plays game like and is that a in Russian roulette is a Russian roulette killed, knowingly undertaking solely publicly not the risk of death the death ... would be Kovach, regarded the sake risk itself. See "[t]o as an accident” and allow re- for of (noting "playing covery defeat F.3d at 338 that Russian in such circumstances would utility”). very purpose underlying social or function of roulette has zero roads, .227. In our try going judgment, with BAC .227 and a BAC of none forty-mile-per- hour in a sixty miles an these so circumstances is extreme that reasoning ought hour zone. same person they reasonable would think fell as apply to his situation well. We believe outside the realm of an “accident” suffi person a reasonable would believe trigger cient to of AD & D payment bene his in a death one-car rollover crash suggesting fits. While we are not
occurring during
drive
result
this
was the
are no
in
there
circumstances where an
of an “accident”
the Plan at issue
would
so
resulting
sured
be
drunk that a
(not-
Kovach,
here.16 See
at 330
longer
wreck could no
be deemed an acci
ill-advised,
ing
driving
dan-
that “drunk
is
dent,
Schuman, 44 Tort Trial & Prac.
see
gerous,
easily avoidable,”
but “so are
61, (just
prepared
L.J. at
as we are not
many other activities that contribute to
suggest
speed
that there is no
at which a
typical policyholder
wrecks that a
would
which,
motorist could drive
under the cir
”);
consider ‘accidental’
see also id. at 333.
cumstances,
resulting
would take a
crash
conclusion,
reaching
focus,
this
not
accident),
out
the realm of an
such are
motivations,
on the insured’s
but on his not the facts before us.17
exclusively
conduct. We focus not
on the
suggest
Nor
we mean
do
drunk
BAC,
fact that
a .227
Mark LaAsmar had
(or
speeding
driving)
or distracted
already rejеcted
ap-
because we have
is
Certainly
not a concern.
it is. But
plication
per
denying
of a blanket
rule
se
what we must
here
parties’
address
is the
anytime an
coverage
insured exceeds the
expectations
scope
legal BAC limits in the
of explicit
absence
coverage
Reviewing
an “accident.”
language
the Plan to
In-
that effect.
question de
strictly construing
novo and
stead, here we focus on Mark LaAsmar’s
policy
the terms of the
conduct,
the insured’s
specific
driving with a BAC of
favor,
“accident,”
we hold that
early
as used
.227
in the
morning on
two-lane
AD D
road,
policy,
coverage
extends
rural
exceeding
posted
speed
resulting
limit
unintended death
from an vehicle
by twenty
per
miles
hour. A reason-
crash where
able
the driver had a blood
resulting
would call the
roll-
alcohol
approximately
over an “accident.” That
content
2.8
the legal
would be true
times
Mark
limit
being
whether
LaAsmar wrecked his truck
and where the vehicle was
driv-
twenty
because he fell
asleep
approximately
lost control be-
en
miles
hour
cause he
speeding.
It
limit
speed
should also
over the
on a two-lane rural
true if he ran
night.
off the road because he had
road at
another
way,
Said
inter-
Although
dispositive,
16.
By submitting
our
conclusion
the death certificate and
everyone
bolstered
the fact that
involved
trooper's investigative report,
state
the LaAs-
investigation
single-
aftermath
showing
mars satisfied their burden of
crash, including
investigating
vehicle
state
according
death was an accident
to their
trooper,
the medical examiner
and Mark
Furthermore,
reading of the Plan.
this materi-
employer,
LaAsmar's
called it an "accident.”
only
requested by
al was the
material
MetLife
Kovach,
(noting
id. at see also F.3d at & D that issue (noting that a 625 number of courts have coverage would include any situation morphed “highly likely” stan- Wickman’s reasonably where a loss was foreseeable into a foreseeability” dard “reasonable a AD D purchases because & cov- J., test); (Clay, id. at 628 dissenting) erage exactly something because is reason- (noting “many incorrectly courts have ably foreseeable. See 10 Couch on Insur- objective prong framed the of the Wick- (noting ance 139:11 fact that “[t]he inquiry in man terms that water it down injuries and death are in ‘foreseeable’ a substance, asking an injury whether general very manner is the reason ”); ‘reasonably was foreseeable’ Rich- people purchase insurance against acci- mond, 32 Seattle U.L.Rev. at 102. Nor is dents—no one a plane who found crash directly analogous Wickman to the situa- purchase trip ‘unforeseeable’ would insur- tion at issue here. Wickman did not in- ance”; noting further all “[a]lmost a volve situation where the insured was adverse events are ‘foreseeable’ the ab- and, driving such, drunk only as is gener- stract sense: hit car being a while Kovach, ally relevant.20 generally See 587 street, crossing leg breaking a while (declining, F.3d regarding case (be skiing, dying drugs from the effects of injury that the insured suffered while they legal illegal), having even a plane drunk, riding motorcycle rely while to house”). your Thus, crash into MetLife’s on case law that “did not even involve in- post application hoc of this “quite broad” toxication”). Moreover, unlike the Plan at reasonably here, foreseeable standard deter- poliсy issue in Wickman did “ ” mine what is and not an specifically the term accident under define ‘accident’ “ unexpected, external, violent, as ‘an legitimate the Plan expec- “frustrate[s] ” sudden event.’ 908 F.2d at plan 1085. participants, tations of for insurance test, therefore, logically Wickman’s fo- presumably is acquired protect against on expectation cused “the level of injuries that are in some sense foresee- necessary for an act to constitute an acci- King able.” v. & Accident Hartford Life Id.; dent.” see also id. at 1087-89. Cir.2005) Co., (8th Ins. (en
Third, banc) parties (noting possibility); here see could not have Ko- intended, vach, they at the time agreed upon same); 587 F.3d at (noting result,” expected shoes would have 273 F.Supp.2d Hartford Life “any expectation (D.S.C.2003) cases), whether other (discussing aff'd, would have (4th Cir.2004) Fed.Appx. been unreasonable.” Id. at (unpub 1089. Neverthe- less, test, Nevertheless, lished). in its formal articulation because of the differ injury Wickman asked whether the presented or lass ences in the circumstances here Wickman, “highly likely” to occur. Id. at from 1088. those addressed we do not consider Wickman determinative in con Wickman, us, parked question the insured his car in text of the before which is wheth highway, “break-down lane” of a driving walked er a drunk crash should be considered thirty highway bridge, feet plan onto a climbed an accident under the at issue. See rail, four-foot-high guard over three- Corp. Corp. Parker v. Danaher ex rel. Danaher Plan, edge on the stood of a steel a few Employee F.Supp. beam inches Benefit wide, holding (W.D.Ark.1994) only and while (criticizing one Wickmans hand, forty fifty fell analysis "shed[ding] feet to the light railroad little area tracks already unduly below. See 908 F.2d at complicated by 1079-80. A of law refer have, nevertheless, distinctions”; applied number of courts ence to various artificial choos presenting question Wickman to ing simply apply cases instead to the “natural “accident,” only whether drunk crash was an meaning” asking "acci- whether die). policy. dent” under an AD & D Poeppel expected the insured *21 Sanchez, ‘negligence’ at ‘carelessness’ enters *6 n. 18 or into 2009 WL “foreseeability” test is on (noting that the most accidents.” Couch Insurance 139:52; “presents op Schuman, it § see 44 Tort “disturb[ing]” because also Trial (“One to deny cover insurer] for Prac. of the portunity [the & Ins. L.J. at 32 chief legal, (e.g., age risky, for but activities protect of is goals accident insurance ladder, driving an automo standing aon insureds from the effects of their own acts. basketball)”); bile, Danouvong, playing if Even results because of accident (noting at 328 that a fore F.Supp.2d fault, insured’s own the insured still ex- seeability “would exclude from standard Otherwise, pects coverage. to receive in- injury resulting or coverage any death any could claim deny surers almost activity in which risky from a driv known any on policy accident insurance driving such as while engages, er-insured grounds the insured contributed to tired, phone, extremely using a cell or The resulting accident. insurer as- drunk, each of activi being because these negligence. sumes risk of the insured’s increases, by anticipatable ties some Consequently, voluntary exposure to dan- amount, collision;” chance of a car fur ger by the is not itself an insured excuse foreseeability noting ther that such stan (footnotes omitted). avoiding liability.”) dard, limit, thus pro without “would reason, too, For this a reasonable coverage only vide to drivers-insureds in could not position Mark LaAsmar’s have number of car colli diminishingly small understood, agreed at the time he to this sions”); Harrell v. Metro. D, AD & that the term “accident” used (E.D.Mich.2005) F.Supp.2d only the Plan meant those incidents where (noting diluting “highly Wickman’s injuries reasonably or death were fore- likely” “reasonably fore standard with on seeable. See 10 Couch Insurance concep common seeable” test “undermines § (noting concept 139:15 that “the ‘rea- injuries,’ and tion of therefore ‘accidental sonably essentially unfоreseeable’ requirement could violate ERISA’s concept in tort employed law deter- plans in a cal benefit be ‘written manner blameworthy op- mine what actions are average culated to be understood accidental, posed generally and is held ”) plan participant’ (quoting 29 U.S.C. inapplicable determining whether a set 1022(a )). § to an of circumstances amounts accident Furthermore, phrase “reasonably insurance”); purposes of accident see a term often foreseeable” is associated 139.25; 139.23, Schuman, §§ also id. Yet, concept negligence. with the tort Trial Tort & Ins. Prac. L.J. 35. above, “recovery for the stated reasons Lastly, agree if we were to with even policy is not defeat- accident insurance of a reasonable fore- application MetLife’s ordinary negli- fact that ed the mere test, not, seeability do which we there is gence of to the the insured contributed nothing administrative record in accident, unless poli- occurrence of the case that MetLife’s support would asser- cy the risk of expressly excepts accidents tion Mark LaAsmar’s driving because insured,” due to negligence a BAC “over two times the lawful here which the Plan at issue does not. made serious 139:52; injury limit” “the infliction of Couch on Insurance see also Kovach, reasonably death foreseeable.” oth- “[H]olding 103.) West, would, cases, majority (Aplt.App. at erwise in the F.Supp.2d little 903-04. fact that policies render accident value for may drunk increase the simple reason that the element of chances *22 812 .227, early neces in morning killed in an accident does not on two-lane
being expected. speeding, Schu rural roads while that he would sarily make that accident King, at 414 F.3d at man, 44 Tort Trial & Ins. Prac. L.J. 30. die.21 Cf. to fact, (remanding plan administrator where a number of courts have noted administrator, in AD D denying & bene that, statistically, reasonably it is not fore fits, to fаiled “discuss whether driving -will evidence that a drunk be person seeable how a Kovach, concerning person reasonable would seriously injured or killed. See view the insured’s] likelihood of death [the (citing at different statis 334-35 satisfy was sufficient to the Wickman “one indicating that either twentieth of tics standard, might precisely however that .17% the who percent” people one or administrator, the” to defined whom crashes); drunk in see Rich drive die also Plan in that had case afforded discre mond, at (suggest 32 Seattle U.L.Rev. Plan). to interpret tion ing dying “an intoxicated driver’s chance of 1-in-9128,” is about which to a “translates reasons, reject For all of these we Met- survival”). percent 99.999 chance of Based application Life’s of a reasonable foresee- “[wjhat statistics, upon these ‘common ability to determine Mark test whether knowledge’ actually tell a person should an LaAsmar’s crash “accident” for driving while intoxicated that she is he or D purposes of the AD & Plan at issue far more to likely driving is be arrested for here. than die in be in while intoxicated or LaAsmars, hand, on the other
jured in an alcohol-related automobile
suggest
will
that
event
not be
“acci
crash,
likely
and far more
home
arrive
only
the Plan
if
“highly
dent” under
it was
arrested,
than to be
injured,
either
or
likely
occur,” citing
Wickman. But
West, 171 F.Supp.2d
killed.”
at 904.
parties,
there is
no
also
indication
indicated,
The First Circuit has
they
agreement
at the time
entered into an
instead, that it is not the statistical proba
AD
coverage,
& D
intended or under
bility
death or
injury
serious
is
that,
stood the term
mean
“accident” to
here,
relevant
but rather “what a reason
either. MetLife did not draft
the Plan
perceive
able
would
person
likely
be the
using
language.
Nor can we attribute
conduct,” pre
outcome of the intentional
“highly likely”
this
plain
test
sumably that
while as impaired
ordinary meaning of “accident.” It is not
Stamp,
as the insured.
92.
F.3d at
what
likely”
even clear
“highly
means.
so,
nоthing
Even
there is still
Kovach,
the ad
at
337 (suggesting
developed
ministrative record
case
“highly likely”
this
is “a good bit more” than a
to suggest
chance,
that a
would
chance);
50%
perhaps
75%
perceive
if he
with a
King,
drove
BAC of
414 F.3d at
(suggesting
court,
.08,
rely
Before the district
MetLife did
least
of drivers died. Disre-
57%
argue
on statistics to
that individuals Mark
garding
moment that
did
age
higher
group
percentage
had
LaAsmar’s
rely
deny
on these statistics to
the LaAsmars
fatal,
alcohol-related
than
wrecks
members
AD & D
benefits and so
cannot consider
age groups;
in other
three times the number
here,
Kellogg,
them
see
549 F.3d at
these
of alcohol-related fatal
wrecks occurred
statistics,
event,
do not address the
night
during
day;
instead of
two-
almost
question
likely
relevant
of how
it is that a
thirds of all fatal wrecks occurred on week-
driver, as drunk as Mark LaAsmar was on the
nights;
ends
of drivers with a BAC of .01
85%
night of
wreck
his
the circum-
higher
had a
killed wrecks
BAC of at
case,
presented by
stances
would reach
.08,
16;
least
had a
of at
51%
BAC
least.
safely.
his destination
involving
and in crashes
a driver with a BAC
Narcotics,”
likely sured’s Use of Intoxicants or
mean “‘more
likely” could
“highly
(2010)
cases);
(collecting
not,’
that ex- 100 A.L.R.5th
probability
lesser
than
some
Appleman
but
falls
Insurance
2d
‘reasonably foreseeable’
ceeds
(1996)
chance,
(discussing
or some-
fifty-percent
188.06[C][3]
of a
short
*23
exclusions); Richmond,
at all on
depend
not
32 Seattle
that does
such
thing else
(citations
(same); Schuman,
omit-
probabilities”)
U.L.Rev. at 113-14
statistical
ted).
likely”
39-43,
“highly
a
standard
at
Applying
Tort Trial & Ins. Prac. L.J.
an accident
is and is not
decide what
number of court cases nation-
to
“The sheer
conjure up greater
courts to
requires
disputes
over claims
involving
still
wide
explanations for
complicated
certainly
put
and more
would have
drunk drivers
every
complica-
such
phrase.
that
With
likely
that
it
on notice
would
[MetLife]
fur-
tion,
gets
of “accident”
the definition
D policies
under its AD &
face claims
ordinary
plain
from the
and
ther distanced
injuries
in alcohol-re-
based on
sustained
“accident,”
further
and thus
meaning of
Kovach,
lated collisions.”
If MetLife wants to qualify limit or the extent of insurer’s caused its coverage & D vehicle wrecks any manner not inconsistent liability certainly it can do driving, drunk insured’s or con- statutory provisions forms or of its Plan by drafting language so Moreover, if policy”). Kovach, trary public to clearly say so. See clearly exprеssly addressed Shields, insurer 336; Marjorie A. “Clause see also plan, in the terms of the Life, Accident, these matters Policy or Health Exclud- guess have to at the of In- insured would not Limiting Liability Case ing or darkness, note, however, “highly early morning with a .227 BAC and that under a 22. We limit, standard, deny speed likely” twenty MetLife’s decision to would die miles above the crash, fare case would not AD & D benefits in this perceive that his death in rollover nothing rec- is still in the well because there "highly circumstances would under those “highly actually suggest that it was ord to likely.” LaAsmar, driving in the likely” that Mark Kovach, coverage purchased.23 purposefully he has injury self-inflicted exclusion” if (noting F.3d at 338 insurers 104), (Aplt-App. apparently referring to express policies “an included exclusion coverage the Plan’s exclusion of AD & D covering injuries for driving accidental (id. “[ijnjuring purpose” oneself on alcohol, while under the influence of or for 83). ap- MetLife deemed this exclusion risky activity company other ply here because exclude!,][p]olicyholders wishes to would physical mental and caused [t]he deficits ... be expecta- able form reasonable by voluntarily consuming large such coverage about type they tions what are quantity necessary alcohol produce purchasing having without make sense 22%, of over BAC resulted in reduced conflicting that deal bodies caselaw *24 awareness, vision, sleepiness, blurred with obscure issues of contractual inter- control, motor lack of loss of and balance pretation”). only Not in- “[t]he should ... judgment, typically getting thought sured know what he is in his as etc.— policy, can insurance so that he decide high tipsy or being pur- or drunk —were coverage whether he would like at a more posefully self-inflicted and caused or price or higher price,” less at a lower contributed the death. Senkier, 948 F.2d at but ERISA 104.) (Id. at a requires provider clearly “to delineate scope Rasenack, obligations,” of its 585 MetLife hаd the establishing burden of at 1318-19. F.3d that loss fell within from exclusion reasons, then, For all of foregoing Rasenack, See coverage. at 1319. reviewing the Plan at here issue de novo It failed to meet that burden here. construing MetLife, it strictly against and is, noted, as we already There have no conclude that indicating evidence the record that Mark position LaAsmar’s would have un- injure Mark LaAsmar intended to himself derstood Plan’s use of the term “acci- “on purpose” night on the of the wreck. dent” to include the crash in which he died. Kovach, 587 F.3d at (rejecting 338-39 Whether Mark death LaAsmar’s argument wreck occurring while in- fell within the exclusion cover- drunk driving sured was fell within exclu- age “injui'ing pur- on oneself “purposeful wound”); sion for self-inflicted
pose” King, F.3d at 1004 (rejecting argu-
Lastly, ment insured’s MetLife denied the LaAs “alcohol intoxication AD mars & D on an benefits “based the was itself ‘intentionally self-inflicted in- wonders, legitimately, 23. Couch fall within the stances definition of an acci- exclusions, specific The use dent? either language employed [i]f these [acci- from the definition of accident without or dent inherently insurance] contracts so is tying specific them to a concept, could ambiguous policy sufficiently that no can many avoid of these definitional and con- clear to avoid disputes to what [as ceptual although ap- dilemmas such “accident”], and is not a covered would it proach concededly would insurers, insureds, shift much not benefit us and all— proof burden in accident in- society cases from large fight abandon —to sureds insurers. provide coverage types either for the 139:10; injuries 10 Couch on Insurance see also produce deaths that the bulk of Kovach, disputes, (noting 587 F.3d at premiums adjusted that insurer accord- ingly, develop easily or list of “could have added an in the standard clear exclusion coverage exclusions from that avoids the Plan for while had it intoxicated so”). need determine these whether circum- wished do III. AND injuries to’ his ATTORNEY’S FEES that ‘contributed jury’ instead, argu death”; PREJUDGMENT holding, inter INTEREST was “based on unreasonable ment most because pretation plan” “[t]he 07-1286, In their cross-appeal, No. inju of the exclusion for reading natural argue that LaAsmars district court by ‘intentionally self- contributed to ries failing its all abused discretion to rule at suicide, injury, attempted sui inflicted requests attorney’s their fees and injuries not include that were cide’ does prejudgment interest. by participant, which unintended but intoxi contributed to alcohol were Attorney’s A. fees Harrell, cation”); F.Supp.2d in pertinent ERISA provides, part capri (rejecting arbitrary under this subchapter “[i]n action of exclu application administrator’s cious ..., beneficiary a ... the court in injury” “intentionally self-inflicted sion for may its discretion allow reasonable attor had a occurring car crash while insured ney’s fee and costs of action to either .17); v. Metro. BAC of see also Santaella § 1132(g)(1). party.” U.S.C. *25 (7th Co., 456, 123 F.3d 465 Cir. Life however, that the argues, LaAsmars failed 1997) that, de (holding because court had in a request attorney’s proper fees man died an acci termined insured from ner. That is true. medication, prescription of dental overdose Prior to the court’s district decision “rely upon administrator could not plan case, the merits of their did LaAsmars self-injury’ inflicted ex ‘intentionally request attorney’s fees from the district clusion”; noting that the record further pleadings. court several of their Never support any case determi would theless, after the district court entered simply other than that the nation insured behalf, on their the LaAsmars judgment mistake”). Eighth a “fatal As the made follow requirements failed to of Fed. noted, rarely has thinks of Circuit “[o]ne 54(d)(2) R.Civ.P. and the relevant local safely driver arrives home as drunk who seeking of attorney’s rule an award fees. ‘injured’ King, 414 party.” F.3d 710, v. Bhd. See West Local Teamsters ‘intentionally “to (noting 1004 further that Plan, (8th 1082, Pension 528 F.3d suicide, attempted injury, self-inflicted or Cir.2008) 54(d) (applying request Rule ‘startling is at least a cоnstruc suicide’ attorney’s fees under ERISA’s 29 for ”). tion’ Freed, Bender 1132(g)(1)); U.S.C. v. has, therefore, to meet its MetLife failed (7th 747, Cir.2006) (same); F.3d proving pre- that this exclusion burden Bank, v. Jones Central F.3d 312- recovering from AD cludes the LaAsmars 54(d)(2)(A) (5th Cir.1998) (same). Rule Rasenack, D benefits. & See for provides attorney’s claim fees “[a] 1319. expenses and related nontaxable must be law made motion unless substantive to the of AD 4. Conclusion as denial those at trial proved fees to requires be D& benefits addition, damages.” an element pro- statute or a court order [u]nless reasons, dis- For these we AFFIRM the otherwise, vides the motion must: trict court’s decision to overturn MetLife’s (i) days AD D filed no later than 14 after of the LaAsmars’ claim for & denial entry of judgment; benefits.
(ii)
Prejudgment
B.
specify
judgment
and the stat-
interest
ute, rule,
entitling
or other grounds
in
prejudgment
An award of
award;
movant to the
terest in an
case
ERISA
is also within
district
Kellogg,
court’s discretion. See
(iii)
sought
provide
state the
amount
Weber,
833;
they had failed to neglect show excusable In light post-judgment of this series of justify that would extending they events, the time any the LaAsmars have waived motion). to file such a request had prejudgment for interest. The interpretation” law rules contract for an extension of time must motion LaAsmars’ applied determining in the meaning court there to the district indicated Plan undefined term. Santaella v. time for it to act on no at that need (7th Co., 456, 461 Metro. Ins. prejudgment request the LaAsmars’ Life Cir.1997); see Miller v. Mоnumental LaAsmars never raised And the interest. (10th 1245; 1249 Cir. court. again to the issue
2007).
law,
“[Ajpplying federal common
not
proper inquiry
...
what [the
C.
Conclusion
Plan
intended
term to
administrator]
request
failed
the LaAsmars
Because
rather,
signify;
we consider the ‘common
in
attorney’s
proper
fees
award
ordinary meaning
per
as a reasonable
manner,
court did not err in
the district
position
participant
in the
[plan]
son
request.
did the
addressing
Nor
... would have understood the words to
addressing
in not
pre-
district court err
” Miller,
mean.’
legal Id. at 335 limit.” added). study in- Because this
emphasis