Stamp v. Metropolitan Life Insurance

United States Court of Appeals
For the First Circuit

No. 07-1061

KAREN STAMP,

Plaintiff, Appellant,

v.

METROPOLITAN LIFE INSURANCE COMPANY;
ADMINISTRATOR-BENEFITS, EXXONMOBIL BENEFIT PLAN;
EXXONMOBIL CORPORATION; EXXONMOBIL BENEFIT PLAN;
LIFE INSURANCE PROTECTION PLAN OF MOBIL OIL CORPORATION;
and LIFE INSURANCE PLAN OF MOBIL OIL CORPORATION,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Torruella, Lipez, and Howard,
Circuit Judges.

Fred L. Mason, Jr., with whom Mason Associates P.C. was on
brief, for appellant.
Ian Linker, with whom Brooks R. Magratten, Catherine A.
Shaghalian, and Vetter & White were on brief, for appellee
Metropolitan Life Insurance Company.
Neal J. McNamara, with whom Nixon Peabody LLP was on brief,
for appellees.

June 30, 2008
 LIPEZ, Circuit Judge. This case requires us to determine

whether the plan administrator of an employee benefits plan

governed by the Employees Retirement Income Security Act ("ERISA"),

29 U.S.C. §§ 1001-1461, may reasonably conclude that the insured,

who was killed in a one-car collision with a tree while driving

with a blood alcohol content ("BAC") of three times the legal

limit, did not die as a result of an "accident" for purposes of his

Accidental Death and Dismemberment ("AD&D") life insurance

policies. After careful review of the developing federal common

law under ERISA, we uphold the plan administrator's determination

that, in this case, the insured was so highly intoxicated that his

death was not an "accident." In so doing, we affirm the judgment

of the district court.

I.

The facts are undisputed. On August 2, 2002, Steven

Stamp attended a meeting for employees of appellee Exxon Mobil

Chemical Company ("Mobil") at a resort in Westbrook, Connecticut.

The meeting consisted of presentations in the morning, a boat

cruise in the afternoon, and dinner that evening. Mr. Stamp spoke

with his wife, appellant Karen Stamp, at 5:20 p.m. and confirmed

that after dinner he planned to drive to his parents' home near

Providence, Rhode Island, where she and their young daughter would

join him to celebrate his brother's 40th birthday the next day.

Mrs. Stamp attests that he did not sound impaired during the phone

-2-
call, that he "sounded in good spirits," and that he had enjoyed

the meeting and cruise. Mr. Stamp consumed several alcoholic

beverages during the boat cruise and at dinner, but his co-workers

reported that he did not appear to be impaired or unsteady when he

left the resort between 8:30 and 9:00 that evening.

At 9:20 p.m., while en route to the Providence area, Mr.

Stamp placed a cell phone call to his friend Joe Kingsley, hoping

to visit him on his way through Rhode Island. Kingsley declined,

explaining that he needed to go to bed early. Kingsley described

Mr. Stamp's mood as positive and upbeat and reported that he did

not sound intoxicated.

The drive from Westbrook to Mr. Stamp's parents' house

should have taken about an hour and a half. Cell phone billing

records of calls placed through directory assistance at 9:51 p.m.

and 9:58 p.m. indicate that Mr. Stamp was already in the Providence

area at that time, but Mr. Stamp evidently did not go directly to

his parents' house. MetLife and Mobil posit that he must have

stopped somewhere and consumed additional alcohol instead. As

further evidence of this stop, MetLife notes that Mr. Stamp's hand

had a stamp on it that read "copy." In MetLife's view, this fact

indicates that Mr. Stamp went to a bar where his hand was stamped

at the door.

Just after midnight, Mr. Stamp died when his car went off

the road in Johnston, Rhode Island and struck a tree. At the time

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of his death, his BAC was .265%, more than three times the legal

limit in Rhode Island.1 The police report described the road

conditions at the time of the collision as dry, the traffic as

light, and there were no other adverse driving conditions.2 The

autopsy report concluded that the cause of death was "[m]ultiple

injuries due to blunt force trauma," and noted "acute ethanol

intoxication" as another significant finding. The report

classified the manner of death as "accidental."

Mrs. Stamp, the beneficiary of her husband's life

insurance policies, submitted a claim for benefits. Appellee

Metropolitan Life Insurance Company ("MetLife"), acting as claim

fiduciary, paid her claim for Basic Life Insurance benefits, but

denied her claims for benefits from her husband's Basic and

Voluntary AD&D policies. MetLife left undetermined Mrs. Stamp's

claim for benefits under an additional Occupational AD&D policy.

Mrs. Stamp submitted a timely appeal to Mobil, which, in

its capacity as plan administrator, had "full and exclusive

authority to make final determinations as to all issues concerning

plan administration," including "discretionary and final authority

to determine coverage and eligibility for benefits . . . [and] to

1
Rhode Island criminalizes driving with a BAC of .08% or higher.
R.I. Gen. Laws § 31-27-2. Increased penalties apply when the
driver's BAC is greater than .15%. Id. § 31-27-2(d)(1)(ii).
2
The police report used the term "accident scene," but it did not
make any determination as to the cause of the crash.

-4-
interpret and explain the terms of the Life Insurance Program."

Mobil denied Mrs. Stamp's appeal of the Basic and Voluntary AD&D

benefit decisions, and rejected her claim for Occupational AD&D

benefits.

The ERISA plan at issue provides that Basic and Voluntary

AD&D benefits will be paid if the insured is "physically injured as

a result of an accident and die[s] within 90 days as a result of

that injury or accident." Occupational AD&D benefits will be paid

if the insured's death occurs "within one year as a result of an

injury caused by an occupational accident 'while at work.'" Mobil

concluded that Mr. Stamp's death was not the result of an

"accident," and therefore was not covered by his AD&D policies.3

The denial letter explained:

In your appeal submission you argue that the
weight of legal authority compels me to find
that the collision in this case was an
"accident" within the meaning of the plan.
Counsel has reviewed these and other cases and
advises that the weight of authority under
applicable Federal law would not compel such a
finding.

3
Mobil further determined that: (1) Mr. Stamp's death was caused
by an "intentionally self-inflicted injury," and thereby excluded
from coverage by the terms of the Basic and Voluntary AD&D
policies; (2) Mr. Stamp was committing a "serious crime" when the
collision occurred, excluding coverage under the terms of the
Voluntary and Occupational AD&D policies; and (3) the collision did
not occur "while at work" for the purposes of the Occupational AD&D
policy. Because we conclude that Mobil did not act arbitrarily in
denying benefits based on its application of the term "accident,"
we do not reach these other grounds for the denial.

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 In as much as I am not bound by law, I look to
the purpose of the plan. I believe that the
purpose of the plan is to protect participants
from risks that are outside of their control.
The risks flowing from driving while
intoxicated are completely within the control
of the participant. While it is true that
certain behavior that increases risk (such as
skiing or horseback riding) would not result
in loss of coverage, [driving while
intoxicated] can be distinguished because it
unreasonably increases the risk associated
with a normally safe activity by interfering
with an individual's ability to perceive and
respond to risk. To impose the costs of such
unreasonable risk-taking on the plan would
result in an unanticipated cost.

Mobil further explained that "[t]he fact that the coroner's report

and the police report use the term 'accident' does not govern the

proper interpretation under the plan."

Mrs. Stamp filed suit in district court, asserting claims

for breach of contract and breach of fiduciary responsibility. The

district court held that Mrs. Stamp's common law claims are

preempted by ERISA and treated her suit as an ERISA enforcement

action pursuant to 29 U.S.C. § 1132(a)(1)(B). Mrs. Stamp has not

appealed that determination. On cross-motions for summary

judgment, the district court reviewed Mobil's denial of benefits

under an "arbitrary and capricious" standard and concluded that the

"determination that Mr. Stamp's death was not accidental is

reasonable and supported by substantial evidence in the record."

The district court entered judgment in favor of MetLife and Mobil.

Mrs. Stamp filed this timely appeal.

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 II.

We review the district court's grant of summary judgment

de novo. Wright v. R. R. Donnelley & Sons Co. Group Benefits Plan,

402 F.3d 67, 73-74 (1st Cir. 2005). Where, as here, the ERISA plan

grants the plan administrator discretionary authority to make

benefit determinations, we must uphold the administrator's

determination unless it was "arbitrary, capricious, or an abuse of

discretion." Id. at 74 (quoting Doyle v. Paul Revere Life Ins.

Co., 144 F.3d 181, 183 (1st Cir. 1998)); cf. Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Under this

standard, we will uphold the denial of benefits if the plan

administrator's decision was "'reasoned and supported by

substantial evidence.'" Id. (quoting Gannon v. Metro. Life Ins.

Co., 360 F.3d 211, 213 (1st Cir. 2004)). "Evidence is substantial

if it is reasonably sufficient to support a conclusion . . . ."

Gannon, 360 F.3d at 213.

Mrs. Stamp argued before the district court that this

deferential standard of review was inappropriate because Mobil's

contract with MetLife is "experience-rated," linking Mobil's

premium costs to the number and size of claims presented. She

asserted that this link represented a "structural conflict of

interest" that would mandate a less deferential standard of review.

However, Mrs. Stamp has abandoned this argument on appeal. In her

brief, she merely cites the legal proposition that a conflict of

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interest may reduce the degree of deference we owe the plan

administrator; she does not argue that a conflict actually exists

in this case. Thus, this argument is waived.4 See United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to

in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived."). Consequently, we review the

denial of benefits under the "arbitrary and capricious" standard.

III.

Mr. Stamp's AD&D policies stated that MetLife would pay

accidental death benefits if Mr. Stamp died as a result of an

"accident." The term "accident" is not defined in the plan

documents. The plan administrator had the task of applying this

term to the circumstances surrounding Mr. Stamp's death.

In reviewing the administrator's denial of benefits, we

are guided by the principles of the federal common law of ERISA.

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56-57 (1987)

(concluding that Congress intended for a federal common law to

develop in the ERISA context); Wickman v. Northwestern Nat'l Ins.

Co., 908 F.2d 1077, 1084 (1st Cir. 1990). In particular, we rely

on Wickman, a case in which we added to the ERISA common law by

4
Moreover, in MetLife v. Glenn, No. 06-923 (June 19, 2008), the
Supreme Court determined that a "conflict of interest" exists when
a single entity both funds the plan and evaluates the claims. Slip
op. at 5, 8. Mrs. Stamp did not assert this form of conflict;
here, MetLife funded the plan while Mobil made final benefit
determinations.

-8-
formulating an approach for interpreting the ambiguous term

"accident" in AD&D insurance policies. 908 F.2d at 1087-88.

We began with the principle that "the reasonable

expectations of the insured when the policy was purchased is the

proper starting point for a determination of whether an injury was

accidental under its terms." Id. at 1088. But we noted that this

was only a starting point. The operative inquiry into the

insured's "expectations" in Wickman actually concerned the

insured's state of mind at the time of the incident that caused his

death, not at the time the policy was purchased. See id. at 1089

("If he actually expected the result, even if he did not

specifically intend it, then his actual expectations make his death

not accidental."). We see no necessary inconsistency between these

two formulations of the relevant time frame. The conclusion that

the insured expected, or reasonably should have expected, that

death would result from the particular conduct at issue is

tantamount to the conclusion that no reasonable person, when buying

an insurance policy, could expect that AD&D benefits would be paid

out when his death results from that sort of conduct. In any case,

aside from the reference to the expectations at the time of

purchase as a "starting point," the analysis in Wickman makes no

further reference to those expectations and is instead concerned

solely with the insured's expectations related to the intentional

conduct that caused his death. We adopt that approach as well.

-9-
 The Wickman analysis thus began with an inquiry into the

expectations of the insured at the time of the incident that caused

his death. However, this subjective inquiry was not determinative.

We held that even if "the fact-finder determines that the insured

did not expect an injury similar in type or kind to that suffered,

the fact-finder must then examine whether the suppositions which

underlay that expectation were reasonable." Id. at 1088. We

further observed that "'the subjective state of mind of the insured

cannot be generally known.'" Id. at 1087-88 (quoting Hoffman v.

Life Ins. Co., 669 P.2d 410, 419 (Utah 1983)). Thus, in the usual

case, where the fact-finder will find "the evidence insufficient to

accurately determine the insured's subjective expectation," the

fact-finder "should then engage in an objective analysis of the

insured's expectations." Id. at 1088. We framed this objective

analysis as an inquiry into "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." Id. This reasonable person

analysis, "when the background and characteristics of the insured

are taken into account, serves as a good proxy for actual

expectation." Id.

We then applied this framework to the particular facts in

Wickman, where the insured died after falling from a railroad

bridge, having intentionally climbed over the guardrail on the side

-10-
of the bridge. Although there was some evidence that the insured

intended to kill himself, we determined that his actual

expectations could not be ascertained. Id. at 1088. Therefore, we

applied the objective prong of the Wickman analysis and concluded

that "[o]bjectively, he reasonably should have expected serious

injury when he climbed over the guardrail and suspended himself

high above the railroad tracks below by hanging on to the guardrail

with only one hand." Id. at 1089. Consequently, we upheld the

determination that his death was nonaccidental.5

Our reasoning in Wickman has been widely accepted by our

sister circuits.6 See Eckelberry v. Reliastar Life Ins. Co., 469

F.3d 340, 343-45 (4th Cir. 2006). Applying Wickman, federal courts

5
In Wickman, we interpreted the term "accident" de novo,
affording no deference to the plan administrator. Although the
case was decided about a year after the Supreme Court's statement
in Firestone, 489 U.S. at 115, that a deferential standard of
review should be applied where the benefit plan grants the
administrator discretion to make benefit determinations, Wickman
contains no discussion of the applicable standard of review. We
can only surmise that discussion of Firestone was unnecessary
because the policy at issue in Wickman did not contain the critical
discretionary language that would have altered the standard of
review.
6
Some of these courts have struggled with whether a "reasonable
foreseeability" test, which arguably is a less favorable test for
the insured than the "highly likely" phrase in Wickman itself, may
be used by a plan administrator without running afoul of Wickman.
See Lennon v. Metro. Life Ins. Co., 504 F.3d 617, 625 (6th Cir.
2007) (Boggs, C.J., concurring). Although MetLife used the phrase
"reasonably foreseeable" in its initial benefit denial, Mobil did
not invoke that standard. We review the decision of the plan
administrator, Mobil. As such, we have no occasion to comment on
the acceptability of using "reasonable foreseeability" as a
shorthand for Wickman.

-11-
have, "with near universal accord," upheld plan administrators'

determinations that "alcohol-related injuries and deaths are not

'accidental' under insurance contracts governed by ERISA." Id. at

344; see also Lennon v. Metro. Life Ins. Co., 504 F.3d 617, 622-23

(6th Cir. 2007); Cozzie v. Metro. Life Ins. Co., 140 F.3d 1104,

1110 (7th Cir. 1998); Weatherall v. Reliastar Life Ins. Co., 398 F.

Supp. 2d 918, 924 (W.D. Wis. 2005); Mullaney v. Aetna U.S.

Healthcare, 103 F. Supp. 2d 486, 494 (D.R.I. 2000); Walker v.

Metro. Life Ins. Co., 24 F. Supp. 2d 775, 782 (E.D. Mich. 1997);

Schultz v. Metro. Life Ins. Co., 994 F. Supp. 1419, 1422 (M.D. Fla.

1997); Nelson v. Sun Life Assurance Co., 962 F. Supp. 1010, 1012

(W.D. Mich. 1997); Miller v. Auto-Alliance Int'l, Inc., 953 F.

Supp. 172, 176-77 (E.D. Mich. 1997); Cates v. Metro. Life Ins. Co.,

14 F. Supp. 2d 1024, 1027 (E.D. Tenn. 1996), aff'd, 149 F.3d 1182

(6th Cir. 1998) (unpublished). But see West v. Aetna Life Ins.

Co., 171 F. Supp. 2d 856, 904 (N.D. Iowa 2001). Thus, the plan

administrator was correct to conclude, in denying Mrs. Stamp's

benefit claims, that "the weight of authority under applicable

Federal law would not compel" a finding that Mr. Stamp's collision

was accidental.7

7
Mrs. Stamp cites two federal cases, King v. Hartford Life & Acc.
Ins. Co., 357 F.3d 840 (8th Cir. 2004), and West v. Aetna Life Ins.
Co., 171 F. Supp. 2d 856 (N.D. Iowa 2001), for the proposition that
drunk driving deaths must be held to be "accidental" under the
Wickman analysis. However, the Eighth Circuit vacated the King
opinion to which she refers. King v. Hartford Life & Acc. Ins.
Co., 414 F.3d 994 (8th Cir. 2005) (en banc). Upon rehearing, the

-12-
 In applying the Wickman analysis to drunk-driving deaths,

courts have stated that "'the hazards of drinking and driving are

widely known and widely publicized'" and reasoned that, as a

result, "the insured should have known that driving while

intoxicated was highly likely to result in death or bodily harm."

Eckelberry, 469 F.3d at 345 (quoting Nelson, 962 F. Supp. at 1012).

As the Supreme Court recently observed, albeit in a different

context, "[d]runk driving is an extremely dangerous crime." Begay

v. United States, 128 S. Ct. 1581, 1584 (2008). It is common

knowledge that the danger grows even more extreme as the driver's

level of intoxication increases. Nat'l Hwy. Traffic Safety Admin.,

U.S. Dep't of Transp., Setting Limits, Saving Lives: The Case for

.08 BAC Laws, DOT HS 809 241, revised Apr. 2001. Accordingly,

any drunk driver who takes to the road should
know he runs a risk of injuring another person
[or himself]. The extent of the risk will of
course vary from case to case, depending on
how intoxicated the driver is, how far he
drives, how fast he drives, and how many other

en banc court declined to reach the issue of whether the insured's
claim was, as a matter of law, an accident under the Wickman test
because the plan administrator had not explicitly applied Wickman
in explaining its benefit denial. King, 414 F.3d at 1003-04.
Instead, the court remanded the case to the plan administrator with
directions to apply the Wickman test because the administrator had
"abandon[ed] in litigation its original basis for denying
benefits." Id. at 1005-06. The Eighth Circuit's disposition of
King calls into question the continued vitality of West, which was
decided by a district court in that circuit. See McElyea v. AIG
Life Ins. Co., 326 F. Supp. 2d 960, 967 n.4 (E.D. Ark. 2004)
(noting that the King panel had endorsed the West opinion but that
the panel opinion had been vacated by the en banc court).

-13-
 drivers and pedestrians are sharing the road
with him.

Lennon, 504 F.3d at 621 (quoting United States v. Rutherford, 54

F.3d 370, 376 (7th Cir. 1995)). Following this logic, courts have

emphasized the decedent's level of intoxication when determining

that a plan administrator's denial of benefits was reasonable.

See, e.g., id. at 623 (BAC of more than three times the legal

limit); Eckelberry, 469 F.3d at 345 (BAC of one and a half times

the legal limit); Cozzie, 140 F.3d at 1106 (BAC of more than two

times the legal limit). We endorse this approach.8 The Wickman

analysis does not require a categorical determination that all

alcohol-related deaths are per se accidental or nonaccidental.

Rather, it leads us to consider the circumstances of the fatal

event in question.9

In this case, the plan administrator had substantial

evidence that Mr. Stamp was severely intoxicated when he died. The

toxicology report indicated that Mr. Stamp's BAC at the time of his

8
The dissent asserts that we have "[d]eferentially follow[ed]
in the footsteps of other circuits that have examined this
question." Dissent at 24. That is not the case. We have simply
noted the trend among federal courts. However, we have, as Wright
and Firestone require, deferred to the decision of the plan
administrator.
9
The dissent appears to suggest that we are categorically
concluding that all alcohol-related deaths could be considered
nonaccidental. That is not so. On the contrary, we have been
careful to explain that the proper approach is fact-specific and
that the decedent's degree of intoxication is particularly
probative.

-14-
death was in the range of .231% to .265%. MetLife's medical

department had advised that this level of intoxication "would cause

delirium intoxication. In a sporadic drinker it would cause

lethargy, stupor, combativeness, incoherency & vomiting. In a

chronic drinker, there would be [illegible] emotional changes and

mood changes."10 An internal Mobil memorandum, prepared during the

review of Mrs. Stamp's claim, further elaborated:

Various on-line sources indicate that Mr.
Stamp's ability to control his vehicle would
have been significantly impaired. For
example, the National Highway Transportation
Safety Administration states that all drivers,
even experienced drivers, show impairment at a
BAC of 0.08 – one-third the level reported for
Mr. Stamp. The "Police Handbook" published by
the Oklahoma University Police has the
following descriptions of the effects of
various BACs:
0.20 Feeling dazed/confused or
otherwise disoriented. May need
help to stand/walk. Blackouts are
likely.
0.25 All mental, physical and
sensory functions impaired.
Our own medical department has confirmed that
the assessments by MetLife and these internet
sources are reasonable, and that serious
impairment would be expected.

In its letter denying Mrs. Stamp's claims, Mobil noted

that "[t]here is no evidence to suggest that another vehicle or

object, mechanical failure, or adverse weather or road collisions

contributed to the collision," and concluded that "Mr. Stamp's BAC

10
We note that there is no evidence in the record to suggest that
Mr. Stamp was anything more than a sporadic drinker.

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was at least a substantial contributing cause of the collision."

In light of this well-developed record of the severe impairment

that would be expected from Mr. Stamp's level of intoxication and

the administrator's reasonable inference that his drunk-driving was

a "substantial contributing cause" of the crash, we cannot say that

it was arbitrary and capricious for the administrator to determine

that Mr. Stamp's death was not "as a result of an accident." In

Wickman terms, it is not arbitrary and capricious to conclude that

a reasonable person would view death or serious injury as a highly

likely outcome of driving while so drunk that one may need help to

stand or walk and is likely to black out.11

IV.

Mrs. Stamp makes four arguments to support her claim that

Wickman compels us to reach a contrary determination. First, she

11
Mobil did not invoke the particular terms of Wickman in the
denial letter it sent to Mrs. Stamp. Instead, it stated more
generally that "the weight of authority under applicable Federal
law would not compel" a finding that Mr. Stamp's death was an
accident. The benefit denial is then explained in terms of the
plan administrator's interpretation of the purposes of the plan.
This conclusion is not arbitrary and capricious because of its
failure to recite the Wickman formula. See Cozzie, 140 F.3d at
1110 ("We cannot say . . . that [the administrator's] determination
that the purposes of the plan are best served by acknowledging a
qualitative difference between the ingestion of a huge quantity of
alcohol and other tragedies of human life which do not involve such
a significant assumption of a known risk by the insured is
incompatible with the goals of the plan."). The decision reached
by the plan administrator is compatible with Wickman, even if the
administrator did not explain his decision in Wickman terms.
Moreover, Mrs. Stamp has not asserted that the plan administrator
made a legal error by failing to recite the Wickman formula in its
denial letter.

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marshals evidence from phone calls earlier in the evening to make

the case that her husband did not sound impaired, was "in good

spirits," and was looking forward to a family event the next day.

She concludes that this evidence indicates "clearly" that Mr. Stamp

"had no subjective expectation of death or injury." We disagree.

The conversations she cites shed little light on Mr. Stamp's state

of mind many hours later after he had consumed more alcohol.

Moreover, Mr. Stamp's actual subjective expectation that he would

arrive safely at his parents' house, even if it were clearly

established in the record, is not dispositive. In Wickman, we

explicitly rejected the contention that "unless [the insured]

actually expected to die, essentially that he specifically intended

to commit suicide, his death must be considered an accident."12 908

F.2d at 1087. Instead, the critical determination under Wickman

lies in an objective analysis of what the insured reasonably should

have expected when he decided to drive while highly intoxicated.

Second, Mrs. Stamp contends that the statistical evidence

she presented to the district court "establishes that it cannot be

reasonably concluded by either common sense or legal analysis that

12
The dissent frames the issue as "whether [Mr. Stamp] intended
to kill himself by becoming intoxicated and driving while in this
condition." Dissent at 26. While this is the appropriate inquiry
under the policy exclusion for intentional self-inflicted injury,
it is not the appropriate inquiry when considering the term
"accident." Indeed, the theory that all deaths are accidental
unless the decedent subjectively intended to die was explicitly
rejected in Wickman. 908 F.2d at 1087.

-17-
death resulting from driving under the influence of alcohol is

. . . 'highly likely.'" Her statistics, gleaned from a comparison

of the number of drunk driving arrests and the number of alcohol

related driving fatalities, show that "the statistical probability

of a fatal accident resulting while driving under the influence of

alcohol is 1.19%." However, as the district court properly noted,

such statistics are "meaningless in this context." They simply do

not take into account the degree of intoxication of the driver in

question. As we noted earlier, the risk of being involved in a

fatal crash rises as blood alcohol levels rise. Accordingly,

statistics that do not differentiate between various levels of

intoxication are inapposite. See Lennon, 504 F.3d at 623

("[D]rivers with blood-alcohol levels above the legal limit as a

group are far more likely to arrive home safely than drivers who

are extremely drunk.").

Moreover, the focus of our objective analysis in Wickman

was not on the statistical probability that death would occur from

the decedent's actions. Instead, we were concerned chiefly with

what a reasonable person would perceive to be the likely outcome of

the intentional conduct. Wickman, 908 F.2d at 1089. Russian

roulette provides an archetypal example of this critical

distinction. From a statistical standpoint, the likelihood of

dying from a single round of Russian roulette is 16% – one in six.

Such a death is not "highly likely" if that phrase is taken to mean

-18-
"more likely than not" or "substantially certain." In fact, those

who play Russian roulette have a decent chance, statistically

speaking, of not being injured. Lennon, 504 F.3d at 623.

Nonetheless, such a death "would not be publicly regarded as an

accident" because the mortal risk associated with playing Russian

roulette is patently obvious to any reasonable person. Wickman,

908 F.2d at 1087. Similarly, even if Mrs. Stamp had adduced

evidence that those who drive while extremely drunk have a better

than even chance of arriving home safely, that evidence would not

have been dispositive. Statistical analysis is simply not at the

core of the Wickman analysis.13 Instead, as the Sixth Circuit has

explained, Wickman's framework reflects that "at some point the

high likelihood of risk and the extensive degree of harm risked,

weighed against the lack of social utility of the activity, become

not marginally but so overwhelmingly disproportionate that the

resultant injury may be outside a definition of 'accidental' that

is not unreasonably narrow." Lennon, 504 F.3d at 623. It was not

arbitrary for the plan administrator here to conclude that Mr.

13
In its discussion of the relevance of statistics, the dissent
analogizes to the high rate of lung cancer arising from smoking and
states that "it would be highly unusual . . . to conclude that
anyone who smokes is engaging in a suicidal act and is thus
excludable from coverage under the policy." Dissent at 29. We
agree that smoking is probably not a "suicidal act," but it is
equally true that a smoker's death from lung cancer is not
"accidental" within the meaning of an AD&D policy. As we are
concerned here with the definition of "accident" and not the
definition of "suicide," the dissent's analogy is inapt.

-19-
Stamp's decision to drive while grossly intoxicated qualifies as

overwhelmingly and disproportionately risky conduct.

Third, Mrs. Stamp challenges the conclusion that her

husband's death was causally related to his intoxication. She

speculates that the accident could have been caused by an attempt

to avoid a collision with another vehicle or with an animal.

Because we are concerned with the definition of "accident" as a

threshold of eligibility for benefits, the burden of proof is on

Mrs. Stamp to show the existence of coverage. See 17A Lee Russ &

Thomas F. Segalla, Couch on Insurance § 254:16 (3d ed. 2007); see

also Mario v. P&C Food Markets, Inc., 313 F.3d 758,765 (2d Cir.

2002) (asserting, in an ERISA case, that "the insured has the

burden of proving that a benefit is covered, while the insurer has

the burden of proving that an exclusion applies"); Jenkins v.

Montgomery Indus., Inc., 77 F.3d 740, 743 (4th Cir. 1996) (same);

Blair v. Metropolitan Life Ins. Co., 974 F.2d 1219, 1221 (10th Cir.

1992) (same). Mrs. Stamp's speculation regarding alternative

causes for the collision falls far short of the evidence needed to

carry her burden. As a result, the plan administrator's finding of

fact as to causation is not "arbitrary and capricious."

Fourth, Mrs. Stamp invokes the contra proferentem

doctrine, which holds that the policy terms must be strictly

construed against the insurer and in favor of the insured.

-20-
However, this doctrine is only applied when courts undertake de

novo review of plan interpretations:

When the administrators of a plan have
discretionary authority to construe the plan,
they have the discretion to determine the
intended meaning of the plan's terms. In
making a deferential review of such
determinations, courts have no occasion to
employ the rule of contra proferentem.
Deferential review does not involve a
construction of the terms of the plan; it
involves a more abstract inquiry – the
construction of someone else's construction.

Morton v. Smith, 91 F.3d 867, 871 n.1 (7th Cir. 1996); see also

Winters v. Costco Wholesale Corp., 49 F.3d 550, 554 (9th Cir.

1995). We are engaged in that "more abstract inquiry" here, and

thus the doctrine is inapplicable to our review.

V.

Under the "arbitrary and capricious" standard, "we need

not decide what is the best reading of the words in the insurance

policy," Lennon, 504 F.3d at 624, nor how we would have applied

those words de novo. Instead, we are called upon only to decide

whether the plan administrator's denial of benefits was "'reasoned

and supported by substantial evidence.'" Wright, 402 F.3d at 74

(quoting Gannon v. Metro. Life Ins. Co., 360 F.3d 211, 213 (1st

Cir. 2004)). As we have set forth above, the administrator's

determination that Mr. Stamp's death was nonaccidental is

compatible with Wickman. Objectively, he reasonably should have

expected death or serious injury when he drove with a BAC of more

-21-
than three times the legal limit. That conclusion does not lessen

the tragedy of Mr. Stamp's death. It simply means that the plan

administrator's denial of benefits was not arbitrary and

capricious, and the judgment below is affirmed.

So ordered.

- Dissenting Opinion Follows -

-22-
 TORRUELLA, Circuit Judge (Dissenting). Mrs. Stamp's

ability to recover most of the insurance benefits at issue hinges

on whether her husband's death was an accident within the meaning

of the MetLife policies. It is clear to me that Mr. Stamp's death

while driving under the influence of alcohol was the result of an

accident. As the Supreme Court recently noted, "DUI . . . involves

'accidental or negligent conduct.'" Begay v. United States, 128 S.

Ct. 1581, 1587 (2008) (quoting Leocal v. Ashcroft, 543 U.S. 1, 11

(2004)) (emphasis added). In Wickman v. Northwestern Nat'l Ins.,

908 F.3d 1077, 1084 (1st Cir. 1990), we announced a standard for

determining whether a death was "accidental" within the meaning of

an ERISA-qualified policy. Noting that terms like "accident"

"should be judged from the viewpoint of the insured," we

promulgated a three-prong test because "actual expectation is often

difficult, if not impossible to determine." Id. (1) "[The]

reasonable expectations of the insured when the policy was

purchased is the proper starting point for a determination of

whether an injury was accidental under its terms." Id. at 1088.

(2) "If the fact-finder determines that the insured did not expect

an injury similar in type or kind to that suffered, the fact-finder

must then examine whether the suppositions which underlay that

expectation were reasonable." Id. (3) "Finally, if the fact-

finder, in attempting to ascertain the insured's actual

expectation, finds the evidence insufficient to accurately

-23-
determine the insured's subjective expectation, the fact-finder

should then engage in an objective analysis of the insured's

expectations." Id.

The present case marks our first opportunity to apply the

Wickman analysis to a factual scenario that involves a policy-

holder who died with a heightened Blood Alcohol Content ("BAC")

level in a one-car collision. Deferentially following the

footsteps of other circuits that have examined this question,14 the

majority concludes that Mr. Stamp's death was not accidental. I

cannot disagree more vehemently with that outcome.

I do not feel compelled to follow these prior opinions

because I believe that in reaching this outcome, those cases

misapplied the third prong of Wickman, an error duplicated by the

majority, which also focuses too heavily on a "reasonably

foreseeable" analysis. See slip op. at 10. In Wickman, we said

that "[i]n [our] analysis, [we are required to] ask 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." 908 F.3d at

1088 (emphasis added).

14
See Lennon v. Metro. Life Ins. Co., 504 F.3d 617 (6th Cir.
2007); Eckelberry v. Reliaster Life Ins. Co., 469 F.3d 340 (4th
Cir. 2006); King v. Hartford Life & Accident Ins. Co., 414 F.3d 994
(8th Cir. 2005) (en banc); Buce v. Allianz Life Ins. Co., 247 F.3d
1133 (11th Cir. 2001); Cozzie v. Metro. Life Ins. Co., 140 F.3d
1104 (7th Cir. 1998).

-24-
 I believe that those circuits that have examined

insurance policy exclusions similar to the ones at issue here,

using a "highly likely" or "substantially certain" standard, are

the ones that have reached the correct answer to the question. See

Padfield v. AIG Life Ins. Co. of Am., 290 F.3d 1121 (9th Cir.

2002); Santaella v. Metro. Life Ins. Co., 123 F.3d 456 (7th Cir.

1997) Todd v. AIG Life Ins. Co., 47 F.3d 1448 (5th Cir. 1995).

Those circuits applied Wickman in a proper fashion by engaging in

the following analysis:

[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.

Santaella, 1243 F.3d at 463 (quoting Todd, 47 F.3d at 1456)

(emphasis added).

The administrator, which was affirmed by the majority,

created out of whole cloth an exclusion ex post facto denying

coverage where the decedent's BAC is above legal limits when death

occurs. Rather than attempting to insert an exclusion by

inference, what should be done in those cases in which the parties

have not agreed to such a provision beforehand, is to have a clause

specifically establishing such an exclusion. See Marcus Wilbers,

Note, Alcohol-Related Car 'Accidents'? The Eighth Circuit Moves

Toward Policy Change in ERISA Litigation, 71 Mo. L. Rev. 471, 491

-25-
(2006) ("To eliminate any uncertainty, plan administrators should

include an alcohol-related exclusion in all accidental death

insurance plans.").

The policies at issue here do not include a definition

for "accident." In Wickman, we said that "[c]ase law is fairly

consistent in defining an accident, using equally ambiguous terms

such as undesigned, unintentional, and unexpected." Wickman, 908

F.2d at 1087; Santaella, 123 F.3d at 464 ("Interpreting the policy

terms in an ordinary and popular sense, in the way that a person of

average intelligence and experience would, we treat the term

'accidental' as it is commonly defined, as 'unexpected or

unintentional.'" (footnote and citations omitted)).15 Applying

Wickman, Mr. Stamp's death can be termed nothing other than an

unfortunate accident. The question is not, as the majority frames

it, whether Mr. Stamp was severely intoxicated. See slip op. at

14. The question is whether he intended to kill himself by

becoming intoxicated and driving while in this condition. There is

absolutely no evidence that Mr. Stamp had any such intention.

I. Wickman Analysis

The first prong of the Wickman analysis requires us to

look at the reasonable expectation of the insured when the policy

was purchased. Wickman, 908 F.2d at 1088. As we said in Wickman,

15
Both the police and the autopsy reports indicated that the
manner of death was "accidental." This is not a mere coincidence.

-26-
"[g]enerally, insureds purchase accident insurance for the very

purpose of obtaining protection from their own miscalculations and

misjudgments." Id. Accepting that Mr. Stamp had a BAC above the

legal limit and that he was in a one-car collision with no other

evidence of why he veered off the road and hit a tree, it is fair

to say that, at most, Mr. Stamp miscalculated and misjudged his

ability to drive that fateful evening. He purchased insurance in

order to protect himself and his family against such unforeseen

accidents.

There is no evidence that Mr. Stamp's actions were the

result of anything but misjudgments, not intentional actions.

According to Joe Kingsley, he and Mr. Stamp discussed life

insurance at some point prior to August 2. Mr. Stamp told Kingsley

that he wanted to make sure that his wife and daughter would be

"taken care of if anything happened" to him, adding that he had

taken out significant life insurance for their benefit. On the

night of his death, all evidence indicates that if Mr. Stamp would

have continued along the route to his parents' house, he would have

reached his destination. There is no indication that he attempted

or intended to kill himself. There is no evidence that Mr. Stamp

was distraught or that he was experiencing any personal problems.

A few hours before the accident, he had positive, upbeat

conversations with his wife, co-workers, and friend. His decision

to drive was unlike the game of Russian roulette the majority

-27-
discusses because the point of that game is to see if you are lucky

enough to live, see slip op. at 18, or that as in Wickman, he was

doing something which objectively looked like suicide.

The second prong of the Wickman analysis instructs us to

examine the reasonableness of the insured's expectations. See id.

"The determination of what suppositions are unreasonable should be

made 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." Id. (internal citations

omitted). Much more often than not, driving while under the

influence has a non-fatal outcome. Cf. Todd, 47 F.3d at 1457 ("the

risk of death from autoerotic practice is 'not of such a nature

that [the decedent] knew or should have known that it probably

would result in death. Death was not a normal expected result of

the behavior.'" (citation omitted)(emphasis added)). In 2002, the

year Mr. Stamp died, only forty-one percent of people who died in

automobile-related collisions did so in collisions that involved a

driver with a BAC above the legal limit. See U.S. Dep't of

Transp., Traffic Safety Facts 2004 32 (2004). Almost sixty percent

of the people who died that year did so from car accidents

involving a driver with a BAC of zero. See id. Given this, it can

be said that "a reasonable person would not view death as 'highly

likely' to result from driving drunk.'" Michael E. Gardner, Note,

Accidental Death Insurance Coverage of Drunk Drivers, 69 Mo. L.

-28-
Rev. 235, 246 (2004). Instead, "[i]t is not highly likely for an

impaired driver to die in an alcohol-related wreck, and those

deaths are therefore accidents." Id. at 472. Smoking cigarettes

is responsible for eighty-seven percent of lung cancer deaths, see

Am. Cancer Soc'y, Cancer Facts & Figures 2008 48 (2008), and nearly

twenty percent of smokers die from heart disease, see Am. Heart

Ass'n, Cigarette Smoking and Cardiovascular Diseases, (June 16,

2008). Yet it would be highly unusual where the administrator, or

this Court, to conclude that anyone who smokes is engaging in a

suicidal act and is thus excludable from coverage under this

policy.

In any objective analysis, we must "ask 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." Wickman, 908

F.2d at 1088 (internal citations omitted). In 2005, nearly 1.4

million drivers were arrested for driving under the influence of

alcohol or narcotics. See United States Dep't of Justice, Crime

Prevention in the United States 2005, Table 29. This number is

much higher, both empirically and as a percentage, than the number

of people who died as a result of driving under the influence.

Thus, "[w]hat common knowledge . . . actually tell[s] a person

driving while intoxicated is that he or she is far more likely to

be arrested for driving while intoxicated than to die or be injured

-29-
in an alcohol-related automobile crash, and far more likely to

arrive home than to be either arrested, injured, or killed." West

v. Aetna Life Ins. Co., 171 F. Supp. 2d. 856, 904 (N.D. Iowa

2001).

The likelihood of death is even less probable when we

take into account that the number of people arrested for drunk

driving is lower than one percent of the 159 million self-reported

cases of alcohol–impaired driving among adults in the United States

each year. See Kyran P. Quinlan et al., "Alcohol-Impaired Driving

Among U.S. Adults, 1993-2002," 28 Am. J. of Preventive Med., 346,

348-49 (2005). These statistics do not demonstrate that it is

highly likely that someone who is driving under the influence will

die.

Thus, Mr. Stamp "had a subjective expectation of survival

and . . . such an expectation was objectively reasonable because

death was not certain or even highly likely to result from [his]

conduct." Santaella, 123 F.3d at 464 (citing Todd, 47 F.3d at

1456). "Drunk driving is, to be sure, a foolish and reckless act.

However, when an insured dies as a consequence of his driving while

intoxicated, his death should still be considered accidental

because a reasonable person would not view death as a natural and

probable consequence of drunk driving." Gardner, supra at 253. It

cannot be said that Mr. Stamp expected or intended to kill himself.

See Santaella, 123 F.3d at 463 ("[T]he record simply would not

-30-
support a jury determination that a reasonable person in [the

decedent's] situation would have considered death either 'highly

likely to occur' . . . or 'substantially certain to result from the

insured's conduct.'" (citations omitted)). I believe that

appellees abused their discretion when they denied Mrs. Stamp's

claims because of a determination that Mr. Stamp's death was not an

accident. Mrs. Stamp's claims, however, were denied on other

grounds as well. We examine those grounds below.16

II. Intentionally Self-Inflicted Injury Exclusion

The inquiry for examining policy exclusions for

intentional self-destruction and intentionally self-inflicted

injury mirrors the analysis above. Given the facts, and knowing

that Mr. Stamp was on his way to his parents' house to meet his

family, it cannot be said that his death was the result of a self-

inflicted injury. In Wickman, the decedent drove onto a bridge,

got out of his car, and went to a part of the bridge that he only

would have gone to if he intended to kill himself. See Wickman,

908 F.2d at 1079-80. We found that his death was not the result of

an accident. See id. at 1089. "[A] reasonable person in Wickman's

shoes would have expected to die or be seriously injured as result

of [his actions]." Id. at 1088. That cannot be said here. There

is no evidence that he intentionally struck the tree which caused

16
The majority did not examine the other policies because they
also require the death to be a result of an accident. See slip op.
at 5 n.3.

-31-
his death. "[T]he record [does] not support a determination that

the insured 'did anything other than make a fatal mistake.'"

Padfield, 290 F.3d at 1121 (quoting Santaella, 123 F.3d at 465).

As with the term "accident," there is no definition in

the policy of "intentionally self-inflicted injury." In ERISA

cases, we use federal common law rules to "'interpret the terms of

the policy in an ordinary and popular sense, as would a person of

average intelligence and experience,' and 'construe all plan

ambiguities in favor of the insured.' Plan language may only be

deemed ambiguous where 'it is subject to more than one reasonable

interpretation.'" Santaella, 123 F.3d at 461 (quoting Life Ins.

Co. of N. Am. v. Von Valtier, 116 F.3d 279, 283 (7th Cir. 1997)).

A person of average intelligence and experience would not think

that someone who dies in a one-car collision, even with a BAC above

the legal limit, intentionally caused his own death.17 No doubt,

Mr. Stamp's decision to drive while intoxicated was risky, "but

voluntary risky acts resulting in injury are not necessarily acts

that result in 'intentionally self-inflicted injury.'" Padfield,

290 F.3d at 1129. Accordingly, I believe that Mrs. Stamp's claim

for Basic AD&D insurance benefits should not have been denied by

Appellees.

17
As previously noted, both the police and the autopsy reports
classified the manner of death as "accidental."

-32-
 III. Crime Exclusion

Both the Voluntary and Occupational AD&D policies have

exclusions for decedents who die while "committing or attempting to

commit a felony or other serious crime." Appellees denied Mrs.

Stamp's claim because Mr. Stamp had a BAC level above the legal

limit while he was operating his vehicle.

I believe that the exclusion is inapplicable and find

that the Appellees abused their discretion when they found that Mr.

Stamp committed a serious crime. Mr. Stamp was operating his

vehicle in Rhode Island when he died, and under Rhode Island law it

is not a felony to operate a vehicle while under the influence of

alcohol; it is a misdemeanor. See Rhode Island Motor Vehicle

Offenses, § 31-27-2(a).18 By definition, a misdemeanor is not a

serious crime. See United Union of Roofers, Waterproofers, &

Allied Workers, Union No. 33 v. Meese, 823 F.2d 652, 656 (1st Cir.

1987) ("the 'misdemeanor' label typically applies to crimes that

are not very serious") (citation omitted). Accordingly, I would

find that the crime exclusion does not apply, and that Mrs. Stamp

is entitled to Voluntary AD&D benefits. This does not answer

18
The Rhode Island statute reads in relevant part:

(a) Whoever drives or otherwise operates any vehicle
in the state while under the influence of any
intoxicating liquor, drugs, toluene, or any controlled
substance as defined in chapter 28 of title 21, or any
combination of these, shall be guilty of a misdemeanor
except as provided in subdivision (d)(3) and shall be
punished as provided in subsection (d) of this section.

-33-
whether Mrs. Stamp is entitled to Occupational AD&D because that

policy requires death to occur "while at work."

IV. "While at Work" Exclusion

In order for Mrs. Stamp to qualify for Occupational AD&D

benefits she had to demonstrate that Mr. Stamp was "at work" when

he died. The policy clearly states that "while at work" "does not

include any personal time taken before, during or following a

Mobil-approved business trip." Mrs. Stamp argues that Mr. Stamp

was "at work" because the meeting he attended was mandatory and he

died on his way back from the meeting. ExxonMobil noted that Mr.

Stamp was no longer "traveling from" the work-related business

meeting when he died. ExxonMobil also noted Mr. Stamp stopped "for

several hours for a separate, purely personal purpose."

According to Mrs. Stamp, Mr. Stamp's co-workers, and

Kingsley, Mr. Stamp was not inebriated when he left his work

function. Mr. Stamp was legally inebriated when he died; his BAC

level was three-times the legal limit. Given the road conditions,

the weather, and Mr. Stamp's conversation with Kingsley at about

9:30 p.m., Mr. Stamp should have reached his parents' house by

10:30 p.m. Yet, by midnight, he still had not reached his

destination. The conclusion that Mr. Stamp became inebriated by

reason of some non-work related activity after he left the work

function is supported by circumstantial evidence. Thus, I would

find that ExxonMobil did not abuse its discretion when it

-34-
determined that Mr. Stamp's collision occurred during "personal

time taken . . . following" his trip and that Mrs. Stamp is not

entitled to recover under the Occupational AD&D policy.

V. Conclusion

For the reasons explained above, I dissent.

-35-