United States Court of Appeals
For the First Circuit
No. 21-1140
MARY ALEXANDRE,
Plaintiff, Appellant,
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Thompson and Kayatta, Circuit Judges,
and Katzmann, Judge.
Lawrence R. Metsch, with whom Metschlaw, P.A., Amiel Z.
Weinstock, and AZW Law, LCC were on brief, for appellant.
Lincoln A. Rose, with whom Tamara Smith Holtslag and Peabody
& Arnold LLP were on brief, for appellee.
January 3, 2022
Of the United States Court of International Trade, sitting
by designation.
KATZMANN, Judge. This action arises under the Employee
Retirement Income Security Act of 1974 ("ERISA"), a federal statute
designed to protect the interests of participants and their
beneficiaries in employee benefit plans.1 29 U.S.C. § 1001 et
seq. Plaintiff Mary Alexandre appeals a decision by the U.S.
District Court for the District of Massachusetts upholding
defendant National Union Fire Insurance Company of Pittsburg, PA's
denial of accidental death insurance benefits to Alexandre
following her husband's death on the grounds that he had committed
suicide. Plaintiff asks that we remand to the district court with
instructions to enter judgment in her favor. We are not persuaded
by Plaintiff's arguments and we affirm the district court's
decision.
I. Background
A. Facts
1. The Accidental Death and Dismemberment Insurance Plan
In May 2018, Plaintiff Mary Alexandre ("Alexandre") was
1 ERISA applies to:
any employee benefit plan if it is established or
maintained --
(1) by any employer engaged in commerce or actively
affecting commerce; or
(2) by any employee organization or organizations
representing employees engaged in commerce or in
any industry or activity affecting commerce; or
(3) both.
Wickman v. Nw. Nat'l Ins. Co., 908 F.2d 1077, 1082 (1st Cir. 1990)
(citing 29 U.S.C. § 1003(a)).
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employed by PricewaterhouseCoopers, LLP ("PwC") and resided in
Boston. Through PwC, Alexandre enrolled in an accidental death
and dismemberment insurance policy ("the AD&D Policy" or "the AD&D
Plan"), an employer-sponsored welfare plan that afforded
participants like Alexandre rights and protections under ERISA.
Under said AD&D Policy, Alexandre's husband, Marzuq Muhammad
("Marzuq"), 2 was insured for a death benefit of $500,000 with
Alexandre named as the beneficiary.
While PwC served as the Sponsor and Administrator of
Alexandre's AD&D Policy, PwC retained defendant National Union
Fire Insurance Company of Pittsburgh, PA ("National Union") to
insure the Policy and to assume fiduciary responsibility for claim
determinations. Concerning claims, the Summary Plan Description
("SPD")3 provided to Alexandre by PwC states, in relevant part:
Payment of Death Benefits
If you or a covered dependent die as the result of, and
within 365 days after, an accident that occurs while
AD&D coverage is in effect, the full amount of your or
2 We note that because our factual recitation requires discussion
of both the deceased, Marzuq Muhammad, as well as his brother,
Mujihad Muhammad, for clarity, we will refer to them by their first
names throughout.
3 The ERISA statute requires that plan participants receive a
Summary Plan Description, see 29 U.S.C. § 1024(b), "written in a
manner calculated to be understood by the average plan
participant," 29 U.S.C. § 1022(a). ERISA contemplates that the
SPD will be an employee's primary source of information regarding
employment benefits. Sidou v. Unumprovident Corp., 245 F. Supp.
2d 207, 218 (D. Me. 2003) ("[T]he SPD 'is an employee's primary
source of information regarding employment benefits.'" (quoting
Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 764 (2d Cir. 2002))).
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your covered dependent's AD&D coverage will be paid to
the designated beneficiary(ies) in a lump sum.
(emphasis added). Neither the SPD nor the official Plan documents
-- which articulate the complete details of and legally govern the
AD&D Policy -- define the term "accident." However, the AD&D
Policy explicitly excludes from coverage "losses, disability, or
death caused by" "suicide or any attempt at suicide or
intentionally self-inflicted injury or any attempt at
intentionally self-inflicted injury." The AD&D Policy further
states that National Union "has the right to interpret the
provisions of th[e] Plan, and [that] its decisions are conclusive
and binding," but explains that unsatisfied participants "have the
right to bring a civil action under Section 502(a) of ERISA within
one year of the final adverse benefit determination."
2. Marzuq Muhammad's Death
The circumstances that gave rise to Alexandre's claim
for death benefits under the AD&D Policy are as follows: On May
20, 2018, Alexandre's husband, Marzuq, died after falling nine
stories from a hotel balcony in Atlanta, Georgia. Marzuq and his
brother, Mujihad, had traveled from Boston to Atlanta on May 18
for an event and were staying overnight in a tenth-floor hotel
room at the Hyatt Regency Hotel at the time of Marzuq's death.
According to the Fulton County Medical Examiner's
Investigative Summary -- which details the accounts of Mujihad and
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another witness in the immediate aftermath of Marzuq's death --
early on May 20, 2018, Marzuq "grabbed and squeezed" Mujihad's
hand so that Mujihad "awakened to see [Marzuq] in a full sprint
towards the door." Immediately thereafter, Mujihad heard a "loud
noise" and emerged from his hotel room to see Marzuq "kicking and
wiggling" in a flower arrangement one story below on the ninth-
floor ledge.
The Medical Examiner's report further details that
Mujihad yelled to his brother "no[,] no, keep still," and that the
other witness -- who was in the hotel atrium below -- heard Mujihad
yell to Marzuq "no[,] no, keep still, don't do it." Marzuq then
rolled off the ninth-floor ledge and fell to the atrium floor.
Marzuq died on impact and his final Death Certificate listed his
death as a suicide.
3. The Claim Denial
Following Marzuq's death, Alexandre submitted a claim
under the AD&D Policy to National Union for accidental death
benefits. On July 31, 2019, AIG Claims Inc. -- the Claims
Administrator for National Union -- informed Alexandre by letter
that because Marzuq's "death was not a result of bodily injury
sustained as a direct result of an unintended, unanticipated
accident but was the result of suicide or an intentionally self-
inflicted [i]njury," it was outside the scope of the AD&D Policy's
coverage; Alexandre's claim for accidental death benefits was thus
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denied. According to the denial letter, AIG based this rejection
upon Alexandre's claim form, Marzuq's Death Certificate, the
autopsy report, the City of Atlanta Incident Report, and the Fulton
County Medical Examiner's Investigative Summary.
Alexandre appealed the denial of benefits to AIG's
Global Personal Accident & Health Division on September 4, 2019.
As part of this appeal, Alexandre submitted a sworn declaration by
Mujihad -- taken on September 3, 2019 -- disputing the
determination that his brother had committed suicide. Mujihad's
sworn declaration differed in certain respects from the account he
gave to the authorities at the scene of Marzuq's death;
specifically, in contrast to Mujihad's statement recorded in the
Medical Examiner's report that Marzuq exited the brothers' hotel
room "in a full sprint" immediately before landing in a flower
arrangement on the ninth-floor ledge, Mujihad's September 2019
account stated that Marzuq "did not appear to be disturbed or
alarmed" as he "went out the door."
On May 4, 2020, AIG -- on behalf of National Union --
affirmed the denial of benefits to Alexandre by letter. In
reaching this decision, AIG conveyed that it had considered
Alexandre's appeal letter, Mujihad's September 2019 sworn
declaration, case law submitted by outside counsel, and other
materials, including those outlined in the July 31, 2019 denial
letter. AIG further explained that in assessing the nature of
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Marzuq's death on appeal, it considered the contemporaneous
investigative reports by the officials in Georgia to be "more
credible than the singular, after-the-fact Declaration of
Mujihad."
B. Proceedings
On January 21, 2020, Alexandre filed suit against
National Union under § 502(a)(1)(B)4 of ERISA in the U.S. District
Court for the Southern District of Florida seeking $500,000 in
accidental death benefits provided for by the AD&D Policy. On
February 19, 2020, National Union moved to transfer the case to
the U.S. District Court for the District of Massachusetts
("district court") pursuant to 28 U.S.C. § 1404(a),5 which the
4 ERISA § 502, codified at 29 U.S.C. § 1132(a)(1)(B), provides in
relevant part:
(a) Persons empowered to bring civil action
A civil action may be brought -
(1) by a participant or beneficiary –
. . .
(B) to recover benefits due to him under the
terms of his plan, to enforce his rights under
the terms of the plan, or to clarify his rights
to future benefits under the terms of the
plan;
5 28 U.S.C. § 1404 provides, in relevant part:
(a) For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any
civil action to any other district or division where it
might have been brought or to any district or division
to which all parties have consented.
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Florida District Court granted on March 30, 2020.
Prior to the transfer, on March 17, 2020, Alexandre moved
for summary judgment, invoking the presumptions against suicide
and in favor of an accident adopted by the Eleventh Circuit in
Horton v. Reliance Standard Life Insurance Co., 141 F.3d 1038 (11th
Cir. 1998). Following the transfer, on May 19, 2020, National
Union cross-moved for summary judgment on the grounds that Marzuq's
death was not accidental, as informed by the First Circuit's
analytical framework set forth in Wickman v. Northwestern National
Insurance Co., 908 F.2d 1077 (1st Cir. 1990).
The district court granted National Union's motion for
summary judgment, denied Alexandre's motion, and entered a final
judgment in favor of National Union on January 20, 2021. In
reaching this decision, the district court applied the First
Circuit's Wickman framework to find that National Union did not
abuse its discretion in determining that Marzuq's death was not an
"accident," and was, thus, excluded from coverage under the AD&D
Policy. In dicta, the district court also considered the Eleventh
Circuit's presumption against suicide, as set forth in Horton, but
found it to be overcome.
Alexandre timely filed her notice of appeal on February
18, 2021.
C. Legal Framework
Before we dive into the parties' specific contentions on
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appeal, we note that "[t]he reader may understand our decision in
this case more easily by keeping in mind the following legal
background." Bos. Trading Grp., Inc. v. Burnazos, 835 F.2d 1504,
1507 (1st Cir. 1987). In enacting ERISA, Congress sought to
implement "a unified system of federal rules to govern the
administration of employee benefit plans."6 As such, Congress
included a "virtually unique preemption provision," Franchise Tax
Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 24 n.26 (1983),
that states ERISA "supersede[s] any and all State laws insofar as
they . . . relate to any [covered] employee benefit plan," 29
U.S.C. § 1144(a).7 ERISA "provides an exclusive federal cause of
action" for resolving "suit[s] by a beneficiary to recover benefits
from a covered plan," Metro. Life Ins. Co. v. Taylor, 481 U.S. 58,
62–63 (1987), with state common law causes of action preempted,
id. at 60 (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41
(1987)).
Although ERISA is a "comprehensive and reticulated
statute," Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S.
359, 361 (1980), since its inception, both Congress and the Supreme
6 Joshua A.T. Fairfield, Comment, ERISA Preemption and the Case
for a Federal Common Law of Agency Governing Employer-
Administrators, 68 U. Chi. L. Rev. 223, 225 (2001).
7 Although not before the court in this case, for the sake of
completeness, we note that the statute "saves" certain state-law
rules -- such as laws regulating insurance -- from preemption as
part of ERISA's "Savings Clause." 29 U.S.C. § 1144(b)(2)(A).
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Court have recognized that courts must develop a federal common
law to interpret and fill in the gaps of ERISA.8 For example, in
the Conference Report on ERISA, Senator Jacob Javits -- one of the
sponsors of the draft legislation9 -- asserted that "[i]t is . . .
intended that a body of Federal substantive law will be developed
by the courts to deal with issues involving rights and obligations
under private welfare and pension plans." 120 Cong. Rec. S29,942
(1974) (statement of Sen. Jacob Javits). The Supreme Court has
repeatedly invoked this statement by Senator Javits in support of
courts' authority to develop federal common law under ERISA. See,
e.g., Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110
(1989) ("Given . . . [ERISA's] history, we have held that courts
are to develop a 'federal common law of rights and obligations
under ERISA-regulated plans.'" (first quoting Pilot, 481 U.S. at
56; then citing Franchise Tax Bd., 463 U.S. at 24 n.26)). Courts
contributing to this federal common law are guided -- and limited
-- "by ERISA's language, structure and purpose."10
8 "The federal common law is generally defined as 'any rule of
federal law created by a court when the substance of that rule is
not clearly suggested by federal enactment.'" George Lee Flint,
Jr., ERISA: Reformulating the Federal Common Law for Plan
Interpretation, 32 San Diego L. Rev. 955, 967 (1995) (quoting
George D. Brown, Federal Common Law and the Role of the Federal
Courts in Private Law Adjudication--A (New) Erie Problem?, 12 Pace
L. Rev. 229, 230 (1992)).
9 See Jeffrey A. Brauch, The Federal Common Law of ERISA, 21 Harv.
J.L. & Pub. Pol'y 541, 550 (1998).
10 See Joseph J. Torres, et al., Jenner & Block, Practice Series:
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Of specific relevance to the case at bar, two areas in
which courts have been active in developing federal common law
under ERISA include: (1) the standard of review for plan
administrator decisions; and (2) plan interpretation.
1. Standard of Review
ERISA is silent as to whether, upon review, courts should
afford any deference to a plan trustee's benefit eligibility
determination.11 In Firestone, the Supreme Court declared that "a
denial of benefits challenged under [29 U.S.C.] § 1132(a)(1)(B) is
to be reviewed under a de novo standard unless the benefit plan
gives the [plan] administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the
terms of the plan." 489 U.S. at 115. In the latter case, the
First Circuit has determined that a reviewing court "must uphold
the administrator's determination unless it was 'arbitrary,
capricious, or an abuse of discretion.'" Stamp v. Metro. Life
Ins. Co., 531 F.3d 84, 87 (1st Cir. 2008) (quoting Wright v. R.R.
Donnelley & Sons Co. Grp. Benefits Plan, 402 F.3d 67, 74 (1st Cir.
2005)). "Thus, the current standard of review -- de novo review
unless the [benefit plan] explicitly gives authority to the plan
administrator -- was imposed through the exercise of federal common
ERISA Litigation Handbook, 231 (6th ed. 2021).
11 Brauch, supra note 9, at 572.
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law."12
2. Plan Interpretation
The ERISA statute, likewise, does not set forth
principles of interpretation to determine the meaning of undefined
terms contained in ERISA-covered plans.13 The federal courts have,
therefore, undertaken to fashion a body of common-law principles
on plan interpretation, with many adhering to common-sense canons
of contract interpretation. See, e.g., Burnham v. Guardian Life
Ins. Co. of Am., 873 F.2d 486, 489 (1st Cir. 1989) ("[T]he 'federal
common law of rights and obligations'" under ERISA "must embody
common-sense canons of contract interpretation." (quoting Pilot,
481 U.S. at 56)). Several courts -- this one included -- have
further declared that state laws on policy interpretation are
preempted under ERISA. See, e.g., Bellino v. Schlumberger Techs.,
Inc., 944 F.2d 26, 29 (1st Cir. 1991) ("The benefit provisions of
an ERISA–regulated plan [must be] interpreted under principles of
federal substantive law.") (first citing Firestone, 489 U.S. at
110; then citing Burnham, 873 F.2d at 489)); see also Sampson v.
Mut. Benefit Life Ins. Co., 863 F.2d 108, 109–10 (1st Cir. 1988)
(rejecting the argument "that the substantive law of Massachusetts
-- rather than the body of federal common law that has grown up
12 Brauch, supra note 9, at 573 (emphasis added).
13 Brauch, supra note 9, at 573.
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around ERISA -- should govern the interpretation of the . . .
policy" at issue).
As a specific -- and pertinent -- example concerning
plan interpretation, various circuits have added to the federal
common law on ERISA by formulating approaches for construing the
term "accident" when left otherwise undefined in AD&D insurance
policies.
For example, in the First Circuit, our precedent in
Wickman provides the analytical framework for interpreting the
term "accident." 908 F.2d at 1088. Under Wickman, for an
insured's death to qualify as a covered "accident," "the
beneficiary must demonstrate that the insured did not expect an
injury similar in type or kind and that the suppositions underlying
this expectation were reasonable," from the perspective of the
insured. Wightman v. Securian Life Ins. Co., 453 F. Supp. 3d 460,
467 (D. Mass. 2020) (discussing Wickman, 908 F.2d at 1088 and
citing McGillivray v. Life Ins. Co. of N. Am., 519 F. Supp. 2d
157, 163 (D. Mass. 2007)). If "the evidence [is] insufficient to
accurately determine the insured's subjective expectation, the
fact-finder should then engage in an objective analysis of the
insured's expectations." Wickman, 908 F.2d at 1088.
In the Eleventh Circuit, the aforementioned Horton case
supplies a different approach for construing the term "accident"
in ERISA-covered policies. 141 F.3d at 1040. There, the Eleventh
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Circuit announced that "when the evidence is inconclusive as to
whether [a] deceased died by accidental or intentional means," it
is "appropriate" to use "the legal presumptions against suicide
and in favor of accidental death" to determine insurance benefit
eligibility. Id. The court affirmed that -- at least in the
Eleventh Circuit -- "[t]hese presumptions are properly part of the
pertinent federal common law" governing ERISA. Id.
With this legal background in mind, we now proceed to
consider the parties' specific issues on appeal.
II. DISCUSSION
Suits brought under ERISA are federal questions for the
purposes of federal court jurisdiction, see Taylor, 481 U.S. at
65–66 (discussing 29 U.S.C. § 1132(a)(1)(B)); thus, this case is
properly in federal court pursuant to 28 U.S.C. § 1331.14 We have
appellate jurisdiction to review the district court's final
decision pursuant to 28 U.S.C. § 1291.15 We review the district
court's grant of summary judgment de novo. Wright, 402 F.3d at
14 28 U.S.C. § 1331 establishes federal-question jurisdiction:
The district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws,
or treaties of the United States.
15 28 U.S.C. § 1291 provides in pertinent part:
The courts of appeals (other than the United States Court
of Appeals for the Federal Circuit) shall have
jurisdiction of appeals from all final decisions of the
district courts of the United States. . . .
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73-74 (citing Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9,
15 (1st Cir. 2003)).
A. Decisional Law
Alexandre first contends that the district court erred
when, following the transfer of the action from the Southern
District of Florida, it granted summary judgment to National Union
using the First Circuit's Wickman framework, rather than granting
summary judgment to Alexandre on the basis of the Eleventh
Circuit's presumption against suicide and in favor of an accident,
as articulated in Horton. Alexandre further argues that the First
Circuit decision upon which the district court relied in applying
the transferee court's law as opposed to that of the transferor
court -- namely, AER Advisors, Inc. v. Fidelity Brokerage Services,
LLC, 921 F.3d 282 (1st Cir. 2019) -- contravenes Supreme Court
guidance and should be overruled.16
By contrast, National Union contends as a threshold
matter that Alexandre's argument that Eleventh Circuit precedent
controls is waived because "Alexandre did not make this 'governing
law' argument below"; in the alternative, National Union argues
that the First Circuit's decision in AER Advisors properly controls
and, thereby, dictates that the law of the First Circuit -- as the
16To clear up any confusion that may be caused by the "legalese,"
here, the Florida federal court was the "transferor court" and the
Massachusetts federal court was the "transferee court."
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transferee court considering a federal question -- applies.
1. Waiver
We find National Union's first contention -- that
Alexandre did not preserve her governing law argument -- to be
overly formalistic. After the case was transferred from the
Florida District Court to the Massachusetts District Court,
Alexandre continued to argue that the Eleventh Circuit's
presumption against suicide, as elucidated in Horton, should
apply. For example, in Alexandre's Memorandum of Law in
Opposition to Defendant's Cross-Motion for Summary Judgment
submitted to the district court, Alexandre contested National
Union's motion for dismissal predicated on our Wickman decision,
asserting:
Because the facts underlying the Wickman decision are
materially distinguishable from the facts underlying
this case, [National Union's] cross-motion for summary
judgment should be denied and [Alexandre's motion for
summary judgment] should be granted on the authority of
the decision in Horton v. Reliance Standard Life
Insurance Company, 141 F.3d 1038 (11th Cir. 1998).
While Alexandre's Opposition Memorandum to the district court may
not have included the specific words "governing law," implicit in
her argument is the question of which circuit's case law applies
following the transfer of a case under 28 U.S.C. § 1404(a); this
is so because a federal court in Massachusetts would not decide a
case "on the authority of" the Eleventh Circuit's precedent without
determining that it was the governing law.
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Moreover, the district court understood Alexandre's
statements to comprise a governing law argument and, thus,
responded to it as such. For example, in its Memorandum and Order
on Cross-Motions for Summary Judgment, the district court
declared:
As an initial matter, Eleventh Circuit precedents are
not binding on the Court. And that remains true here
even though the case was originally filed in the Southern
District of Florida. The First Circuit recently
explained that after a federal-question case is
transferred pursuant to § 1404(a), the transferee court
should apply its own circuit's precedents concerning the
meaning of federal law.
Because we agree with the district court's assessment that
Alexandre raised a governing law argument below, we find no waiver.
As such, we proceed to consider and reject Alexandre's governing
law argument on the merits.
2. Merits
Alexandre's argument that the law of the Eleventh
Circuit -- as the transferor court -- applies is foreclosed by our
decision in AER Advisors, supra p. 15. Precedent is a bedrock to
our system of adjudication. See United States v. Barbosa, 896
F.3d 60, 74 (1st Cir. 2018). Our "'law of the circuit'" doctrine,
"a subset of stare decisis," dictates that "newly constituted
panels in a multi-panel circuit court are bound by prior panel
decisions that are closely on point." San Juan Cable LLC v. P.R.
Tel. Co., Inc., 612 F.3d 25, 33 (1st Cir. 2010) (emphasis added)
(citing United States v. Rodríguez–Vélez, 597 F.3d 32, 46 (1st
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Cir. 2010) and United States v. Wogan, 938 F.2d 1446, 1449 (1st
Cir. 1991)). "Although this rule is not 'immutable,' the
exceptions are extremely narrow and their incidence is hen's-
teeth-rare." Id. (quoting Carpenters Local Union No. 26 v. U.S.
Fid. & Guar. Co., 215 F.3d 136, 142 (1st Cir. 2000)). "Absent
special circumstances," -- such as a ruling of the Circuit sitting
en banc -- "we are duty bound to follow our prior holding." United
States v. Hudson, 823 F.3d 11, 15 (1st Cir. 2016) (citing United
States v. Chhien, 266 F.3d 1, 11 (1st Cir. 2001) (listing
exceptions)). Quite apart from the fact that a single panel is
generally not authorized to overrule a prior panel's decision,
Alexandre offers no new or previously unaddressed reason to deviate
from our recent decision in AER Advisors; we decline her invitation
to overrule that precedent and to apply the Eleventh Circuit's
Horton presumption to her claim.
Alexandre acknowledges that her claim comprises a
federal question for the purposes of federal court jurisdiction.
In AER Advisors, we explained that "when one district court
transfers a case to another, the norm is that the transferee court
applies its own Circuit's cases on the meaning of federal law."
921 F.3d at 288 (emphasis added). 17 Nevertheless, Alexandre
17As we noted in AER Advisors, this principle has been endorsed
by at least the Second, Fourth, Fifth, Eighth, Ninth, and Eleventh
Circuits. See id. at 288 n.5 (collecting cases).
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invokes the Supreme Court cases Van Dusen v. Barrack, 376 U.S. 612
(1964) and Ferens v. John Deere Co., 494 U.S. 516 (1990) -- which
held that in diversity cases18 the transferee courts must apply the
substantive law of the transferor courts -- to contend that "[t]he
inference to be drawn from the foregoing is ineluctable: in any
civil action, whether based upon the parties' diverse citizenship
or a federal question, following a transfer under 28 U.S.C.
§ 1404(a), the transferee court is obligated to apply the
transferor court's governing law." (emphasis added).
However, we considered and rejected this exact argument
in AER Advisors, explaining that "Van Dusen and Ferens are
diversity cases. And with diversity cases, federalism commands
that federal judges apply state substantive law exactly as a state
court would." 921 F.3d at 289 (citing Erie R.R. Co. v. Tompkins,
304 U.S. 64, 78 (1938)). Whereas with "'the adjudication of
federal claims,' federal courts ordinarily 'comprise a single
system in which each tribunal endeavors to apply a single body of
law,' and if different circuits view federal law differently, then
the Supreme Court can restore 'uniformity.'" Id. at 288 (quoting
In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171,
18"Diversity cases" are those cases over which federal courts can
assert jurisdiction because the parties are citizens of different
states and the amount in controversy exceeds $75,000. McKenna v.
Wells Fargo Bank, N.A., 693 F.3d 207, 211–12 (1st Cir. 2012)
(citing 28 U.S.C. § 1332(a)).
- 19 -
1175, 1176 (D.C. Cir. 1987), aff'd on other grounds sub nom. Chan
v. Korean Air Lines, Ltd., 490 U.S. 122 (1989)). Thus, we declared
in AER Advisors that "'[n]othing' in Van Dusen [or Ferens] compels
one federal court to apply another's interpretation of federal law
after a case's transfer." Id. at 290 (emphasis in original).19
In sum, Alexandre has supplied no novel arguments that
compel us to overturn our decision in AER Advisors. Adhering to
our precedent, we find that the district court did not err in
ruling that the decisional law of the First Circuit -- namely, the
19 For similar reasons, Alexandre's reliance on Viernow v.
Euripides Development Corp., 157 F.3d 785 (10th Cir. 1998) -- a
case we did not earlier consider in AER Advisors -- is unavailing,
as it is a non-binding diversity case that concerned only state
law claims.
Nevertheless, Alexandre cites Viernow as part of her
argument that 28 U.S.C. § 1631 -- transfer to cure want of
jurisdiction -- comprises the exclusive exception to Alexandre's
asserted general principle that in any civil action, the transferee
court must apply the transferor court's governing law following a
§ 1404(a) transfer. The problem for Alexandre is that Viernow
does not state such a rule. And moreover, dicta in at least one
other Tenth Circuit opinion indicates that our sister circuit,
likewise, accepts the general approach that we adopted in AER
Advisors for federal-question cases. See Olcott v. Del. Flood
Co., 76 F.3d 1538, 1546 (10th Cir. 1996) (agreeing with a Seventh
Circuit case explaining "that a transferee court normally should
use its own best judgment about the meaning of federal law when
evaluating a federal claim") (quoting Eckstein v. Balcor Film
Invs., 8 F.3d 1121, 1126 (7th Cir. 1993)).
In accordance with our aforementioned "law of the
circuit" doctrine, Alexandre would have needed to furnish binding
precedent to induce us to overturn AER Advisors. Here, Alexandre
has supplied no caselaw -- neither persuasive, nor binding -- to
support her construction of 28 U.S.C. § 1631 as the exclusive basis
for a transferee court to apply its own circuit's cases following
a § 1404(a) transfer. As such, we could not overturn AER Advisors
on these grounds.
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Wickman framework -- rather than the decisional law of the Eleventh
Circuit -- namely, the Horton presumption against suicide --
governs Alexandre's federal cause of action under ERISA.
B. Adverse Benefit Determination
Even though the district court held that courts within
the First Circuit are not obligated to apply the Eleventh Circuit's
presumption against suicide, it nevertheless explained in dicta
that even considering Horton's presumption, National Union's
denial of benefits was not arbitrary, capricious, or an abuse of
discretion given the "substantial evidence" indicating that
Marzuq's death was intentional. On appeal, Alexandre contests
this dicta, while National Union maintains that its decision to
deny accidental death benefits to Alexandre was the correct one.
Notably, Alexandre does not offer any argument that she can prevail
under the Wickman framework, even though she recognizes that
binding precedent likely requires us to adhere to Wickman instead
of Horton. Applying the Wickman framework, we affirm.
We review the district court's grant of summary judgment
de novo, Wright, 402 F.3d at 73-74; however, because the AD&D Plan
at issue stated that National Union "has the right to interpret
the provisions of th[e] Plan, and [that] its decisions are
conclusive and binding," we must review National Union's adverse
benefit determination under the aforementioned arbitrary,
capricious, or abuse of discretion standard. Supra p. 11–12. On
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appeal, Alexandre challenges neither the district court's
conclusion that the AD&D Plan afforded National Union discretion
nor the corresponding consequence that courts must employ the
arbitrary, capricious, or abuse of discretion standard in
reviewing National Union's adverse benefit determination. Because
these issues are not before the court, we do not address them
further.
As such, although we look at the district court's
decision with fresh eyes, under the arbitrary, capricious, or abuse
of discretion standard, we will "uphold [National Union's] denial
of benefits if [its] decision was 'reasoned and supported by
substantial evidence,'" Stamp, 531 F.3d at 87 (quoting Wright, 402
F.3d at 74). "Evidence is substantial if it is reasonably
sufficient to support a conclusion, and the existence of contrary
evidence does not, in itself, make the administrator's decision
arbitrary." Gannon v. Metro. Life Ins. Co., 360 F.3d 211, 213
(1st Cir. 2004).
While Wickman is not cited by name, the analysis in
AIG's20 ERISA Appeal Determination submitted to Alexandre by letter
on May 4, 2020 conforms with Wickman's subjective/objective test
for assessing accidents. As set out above, supra p. 13, where the
term "accident" is otherwise undefined in an AD&D Policy, to find
20Recall that AIG serves as the Claims Administrator for National
Union.
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that an insured's death is covered, "the beneficiary must
demonstrate that the insured [reasonably] did not expect an injury
similar in type or kind" to the one that occurred, Wightman, 453
F. Supp. 3d at 467 (emphasis added) (discussing Wickman, 908 F.2d
at 1088 and citing McGillivray, 519 F. Supp. 2d at 163); where the
insured's subjective expectations are unknowable, "an objective
analysis of the insured's expectations" is required, Wickman, 908
F.2d at 1088. Consistent with this directive, AIG reasoned that
"Marzuq's volitional and purposeful conduct of sprinting out of
the hotel room and hurtling himself over the 10th floor railing of
a high-rise hotel is dangerous conduct" and "no reasonable person
would believe that [doing as such] would not result in bodily harm
or death, even if Marzuq didn't intend to kill himself." Thus,
AIG -- and thereby, National Union -- concluded that Marzuq's death
did not result from an "accident" on the basis of the kind of
subjective/objective analysis required by Wickman.
Next, we ask whether substantial evidence in the record
supports AIG's application of the Wickman framework.
Inexplicably, Alexandre's counsel does not challenge AIG's finding
that Marzuq "hurtl[ed] himself over the 10th floor railing."
Although it appears that nothing more than speculation supports
this claim -- as the evidence establishes only that Marzuq ran out
of his hotel room and was then found one floor below the railing
-- "[w]e [do] not consider potentially applicable arguments that
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are not squarely presented in a party's appellate brief," Baybank-
Middlesex v. Ralar Distribs., Inc., 69 F.3d 1200, 1203 n.5 (1st
Cir. 1995) (citing United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990)); see also Sanchez v. United States, 740 F.3d 47, 48–
49, 54–55 (1st Cir. 2014) ("affirm[ing] the district court's
decision that it had no choice but to dismiss" where counsel failed
to timely lodge plaintiff's claims). On appeal, Alexandre's sole
contention -- and thus, the only argument that we address -- is
that substantial evidence does not support the denial of benefits
to Alexandre because AIG relied on reports produced by state
personnel who arrived at the hotel after Marzuq's death rather
than on the sworn declaration produced by Mujihad in September
2019.
We cannot conclude -- at least not on the basis argued
by Alexandre -- that National Union's adverse benefit
determination was arbitrary, capricious, or an abuse of
discretion. In rendering its decision, AIG considered the Fulton
County Medical Examiner's Investigative Summary -- which captured
the accounts of two percipient witnesses, including an otherwise
unaffiliated witness's statement that he heard Mujihad yelling
"no[,] no, keep still, don't do it" immediately prior to Marzuq's
fall -- as well as Marzuq's final Death Certificate listing his
cause of death as a suicide, among other documents. While
Alexandre questions whether opinions and reports produced by state
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personnel who arrived on the scene after Marzuq's death should be
considered "evidence," we agree with the district court that these
"contemporaneous and impartial" documents "authored by . . . state
official[s] in the exercise of [their] official duties" are
probative.
Moreover, we agree with the district court that National
Union reasonably engaged with Alexandre's contrary evidence --
namely, Mujihad's later sworn declaration -- and "reasonably
rejected [it] as less credible than the contemporaneous, neutral
evidence from the state." "[T]he existence of contrary evidence
does not, in itself, make the administrator's decision arbitrary."
Gannon, 360 F.3d at 213. As such, we cannot -- on the basis raised
by Alexandre -- conclude that National Union's determination that
Marzuq's death was excluded from coverage because it was not
accidental was arbitrary, capricious, or an abuse of
discretion.21,22
21National Union also maintains that Alexandre's claim is further
precluded from coverage by the AD&D Plan's intentional self-
inflicted injury exclusion. Because Alexandre has not argued
grounds sufficient to disturb National Union's conclusion that
Marzuq's death was excluded from coverage because it was not
accidental, we need not reach this additional contention.
22In her reply brief as well as in a Federal Rule of Appellate
Procedure 28(j) letter, Alexandre submitted the cases Krantz v.
John Hancock Mutual Life Insurance Co., 141 N.E.2d 719 (Mass. 1957)
and Bohaker v. Travelers' Insurance Co., 102 N.E. 342 (Mass. 1913),
to argue for the first time that Massachusetts also employs a
presumption against suicide.
As an initial matter, "[b]lack-letter law holds that, in
the absence of exceptional circumstances, arguments presented for
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the first time in an appellant's reply brief are deemed waived."
Álamo-Hornedo v. Puig, 745 F.3d 578, 582 (1st Cir. 2014). The
same is true for Rule 28(j) letters. See, e.g., Rosa-Rivera v.
Dorado Health, Inc., 787 F.3d 614, 617 (1st Cir. 2015) ("Not only
is it improper to advance new arguments in a 28(j) letter, but it
is far too late in the game." (internal citation omitted)). As
Alexandre does not advance any "exceptional circumstances" to
justify the delay, we find her argument waived.
But waiver aside, Alexandre's argument is also
incomplete because each of her submitted cases predates ERISA. As
such, even if Massachusetts state law has embraced a presumption
against suicide -- a point on which we take no position at this
time -- Alexandre has not argued either (1) that any such
presumption "regulates insurance" so as to fall within ERISA's
Savings Clause, see UNUM Life Ins. Co. of Am. v. Ward, 526 U.S.
358, 367–68 (1999); or (2) that we have incorporated that
presumption into the First Circuit's federal common law on ERISA,
see Sampson, 863 F.2d at 109–10 (rejecting the argument that "the
substantive law of Massachusetts -- rather than the body of federal
common law that has grown up around ERISA -- should govern the
interpretation of the . . . policy" at issue).
In fact, Alexandre appears to concede both of these
points, as her reply brief states:
Had Ms. Alexandre, without the involvement of her
employer, purchased an accidental death benefits
insurance policy on her husband's life from [National
Union], she would have gone into battle with [National
Union] armed with the presumption against her husband's
suicide. However, because her employer had procured the
[National Union] accidental death benefits policy, . .
. Ms. Alexandre went into battle with [National Union]
unarmed with the presumption against her husband's
suicide.
(emphasis in original). In essence, Alexandre is saying that if
this were not an ERISA case, she would get the benefit of the
presumption against suicide under Massachusetts state law; but
because this is an ERISA case -- and thus ERISA's preemption
provisions apply -- she does not get the benefit of such a state-
law presumption. While we take no view on whether Alexandre is
correct that federal common law, not state law, applies in this
circumstance, we conclude that Alexandre's statement is, at the
very least, a concession that we should apply federal common law,
not state law, to her case.
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III. Conclusion
Though we decline to disturb National Union's adverse
benefit determination, our decision is not intended to lessen the
tragedy of Marzuq's death or to minimize the loss of those who
loved him. We acknowledge that Marzuq's family and friends may
still have questions about the circumstances attending his end of
life. Our determination simply means that, in light of the
arguments raised on appeal and the standard that governs our
review, we cannot conclude that National Union's denial of AD&D
benefits was arbitrary, capricious, or an abuse of discretion.
For the reasons stated above, the judgment in favor of
National Union is affirmed.
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