Lennon v. Metropolitan Life Insurance

CLAY, Circuit Judge,

dissenting.

The majority opinion today marks a clear departure from federal common law, an affront to common sense, and even more troublesome, an elevation of moralistic judgments above the interpretation fairly attributable to the Personal Accident Insurance (“PAI”) Policy before us today. In my view, the district court properly concluded that Defendant’s interpretation of the PAI Policy was arbitrary and capricious. Accordingly, I dissent.

At the heart of this dispute lies a question that should admit of a simple and straightforward answer, and that would if the question were posed to any man on the street. The seemingly simple question is whether a motorist intoxicated beyond the legal limit who crashes his vehicle has been in an “accident,” or has been “accidentally” injured. A man on the street would answer “yes.” But the question (or some form of it) was put to an ERISA plan administrator and then to a court. The matter quickly became over complicated by exclusions read into express contractual language, by standards of review, and by something akin to Cardozo’s great “Serbo-nian bog” — an unwieldy body of legal precedent laced with not-so-subtle moralistic judgments. See Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. 491, 499, 54 S.Ct, 461, 78 L.Ed. 934 (1934) (Cardozo, J., dissenting). At any rate, the question before this Court is whether Defendant was arbitrary and capricious in denying Plaintiff benefits under the insured’s PAI Policy. To answer this question, we must specifically decide whether Defendant was arbitrary and capricious to find (1) that the insured was not “accidentally” injured, and (2) that the insured sustained a “self-inflicted injury,” within the meaning of the PAI Policy.

Arbitrary-and-capricious review properly applies here because the ERISA plan vests Defendant, the plan administrator, with discretion to construe the terms of the PAI Policy. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Jones v. Metropolitan Life Ins. Co., 385 F.3d 654, 660 (6th Cir.2004). Although arbitrary-and-capricious review is characteristically deferential, it “does not require us merely to rubber stamp the administrator’s decision.” Jones, 385 F.3d at 661. Our obligation to exercise some review extends to “the quality and quantity of the ... evidence and the opinions on both sides of the issues.” McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir.2003). Our “deference need not be abject.” Id. To the extent that we do defer, however, it is only to the plan administrator’s construction of terms in the policy, and we should not hesitate to conclude that a plan administrator arbitrarily and capriciously interpreted a policy by adding exclusions or terms thereto under the guise of interpretation. See Jones, 385 F.3d at 665.

I. WHETHER THE INJURIES WERE “ACCIDENTAL”

The PAI Policy at issue makes benefits payable when the insured “sustains acci*627dental bodily injuries, and within one year thereafter shall have suffered loss of life ... as a direct result of such bodily injuries independently of all other causes.” (J.A. at 153) Additionally, it expressly excludes some losses from coverage on the basis of causation or mode. For example, no benefit will be paid “for any loss which is contributed to or caused, wholly or partly, directly or indirectly, by ... suicide, attempted suicide or self-inflicted injury while sane or insane.” (Id, at 152) Notably, the PAI Policy contains no exclusion for injuries sustained while driving under the influence of alcohol. (See id. at 151— 53) Nor does it define the terms “accident” or “accidental.” Nevertheless, Defendant denied PAI benefits to Plaintiff in part on the ground that “[t]he act of driving while so impaired rendered the infliction of serious injury or death reasonably foreseeable and, hence, not accidental as contemplated by the plan.”1 (Id. at 201)

We interpret ERISA plans “according to their plain meaning, in an ordinary and popular sense.” Perez v. Aetna Life Ins. Co., 150 F.3d 550, 556 (6th Cir.1998). In my view, the most natural reading of the word “accidental,” as it is used in its “ordinary and popular sense,” extends to injuries sustained in motor vehicle crashes while the driver is under the influence of alcohol, even at levels above the legal limit. The public would call the crash an “accident,” and the resultant injuries or death “accidental.” See Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077, 1086 (1 st Cir.1990) (“Probably the best definition [of “accident”] is Cardozo’s tautology that an accident is what the public calls an accident”). This “plain” and “ordinary” meaning is borne out in the insured’s death certificate, the police report, and the medical examiner’s report, all of which classify the manner of death as an “accident.” It also comports with at least one dictionary definition of the word. Webster’s dictionary defines “accidental” as “happening or ensuing without design, intent, or obvious motivation or through inattention or carelessness.” Webster’s 3d New Int’l Dictionary 11 (1993). Certainly, an intoxicated motorist does not intend to crash, much less to die behind the wheel while driving home. If the intoxicated motorist does crash his vehicle, the crash and any concomitant injuries are “accidental” in the sense that they result from “inattention or carelessness.” Lamentably though, given the extensive amount of ink spilled in federal and regional reporters over the “ordinary” meaning of “accidental,” such popular conceptions of its meaning cannot be relied upon in interpreting an ERISA plan. In fact, the barrage of case law on the subject suggests that the meaning of “accidental” is anything but plain.2

Where no plain meaning can be discerned from the plan language, courts typically look to the federal common law to assess the reasonableness of a plan administrator’s interpretation. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Jones, 385 F.3d at 661; Buce v. Allianz Life Ins. Co., 247 F.3d 1133, 1146 (11th Cir.2001) *628(“[WJhere the crucial terms of an accident policy are defined with surpassing vagueness, ... to deploy the federal common law of ERISA to give some unity to the concept of ‘accident’ is sound judicial policy.”). The First Circuit in Wickman v. Northwestern National Insurance Co. first forged a path for the federal common law on this question. The insured in Wickman died after free-falling from a bridge onto railroad tracks 90 feet below. Wickman, 908 F.2d at 1080-81. Just before the fall, a witness observed the insured standing outside the bridge’s guardrail, holding onto it with one hand, at a point reachable only by walking “head on into high speed traffic.” Id. at 1080. The insured’s accidental death policy defined an “accident” vaguely, as “an unexpected, external, violent and sudden event.” Id. at 1081. The ERISA plan administrator denied benefits, and the beneficiary filed suit. The Wickman court surveyed state judicial interpretations of “accidental,” but after doing so, ultimately “elect[ed] to pursue a path for the federal common law.” Id. at 1085-86.

The Wickman court set forth the following approach: First, the court said, consider “the reasonable expectations of the insured when the policy was purchased.” Id. at 1088. That is, did the insured subjectively expect an injury similar in type to the kind suffered to follow from his conduct? If the fact-finder determines that the insured did not expect such an injury, or if the fact-finder cannot ascertain the insured’s subjective expectations, an objective analysis applies. Id. The objective analysis consists of a determination “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. (emphasis added). If the insured “actually expected the result, even if he did not specifically intend it,” then his subsequent death is not accidental. Id. at 1089. Applying its framework, the Wickman court concluded that the insured “knew or should have known that serious injury or death was a probable consequence substantially likely to occur as a result of his volitional act.” Id. The insured “either subjectively expected serious injury, or ... [ojbjectively, he reasonably should have expected serious injury when he climbed over the guardrail and suspended himself high above the railroad tracks below.” Id.

Since Wickman, reviewing courts have largely distorted the inquiry, seizing upon the Wickman court’s conclusory words and eschewing the very test that it established. See, e.g., Buce, 247 F.3d at 1147; Baker v. Provident Life & Accident Ins. Co., 171 F.3d 939, 942-43 (4th Cir.1999); Cozzie v. Metropolitan Life Ins. Co., 140 F.3d 1104, 1109-10 (7th Cir.1998). In essence, they have given effect to the court’s summary statement that “objectively, [the insured] reasonably should have expected serious injury” — a statement which, more likely than not, follows from the vaguely worded definition of “accident” contained in the plan at issue there. See Wickman, 908 F.2d at 1081 (noting the plan vaguely defined “accident” as “an unexpected, external, violent and sudden event”) (emphasis added). However, the conclusory language in Wickman should not be taken to replace the test established earlier in the opinion, which speaks in stronger terms of injury “highly likely to occur” and “probable consequence[s] substantially likely to occur,” and more closely achieves the purpose of the objective inquiry — to determine whether a reasonable person actually expected the result. Thus, many courts have incorrectly framed the objective prong of the Wickman inquiry in terms that water it down in substance, asking whether an injury was “reasonably foreseeable.” As a result, the federal common *629law has strayed from the path initially forged by the Wickman court. I would frame the objective inquiry as Wickman did, and would 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. This formulation clearly requires something greater than mere foreseeability.

Here, the administrative record gives no indication of the insured’s subjective expectations and, accordingly, the objective inquiry should guide this court in deciding whether Defendant rendered an unreasonable interpretation of the PAI Policy. On the basis of Defendant’s denial letter, Defendant evidently defines “accidental” to exclude acts which “render[ ] the infliction of serious injury or death reasonably foreseeable.” (See J.A. at 201) Defendant’s interpretation of “accidental” therefore does not comport with the Wickman court’s objective inquiry, which asks whether injury was “highly likely to occur as a result of the insured’s” act. See Wickman, 908 F.2d at 1088. A “highly likely” consequence is something probable, not merely possible. A reasonable person, with a background and characteristics similar to the insured, undoubtedly knows that driving while legally intoxicated entails risks of injury, death, arrest, and prosecution. However, knowledge of the risk of injury or death — both potential consequences of driving while intoxicated — does not equal knowledge of probable injury or death. Statistically speaking, legally intoxicated motorists arrive safely at their destination without incident more often than not. Of those that do not, police apprehend and arrest a great many legally intoxicated motorists. Comparatively, the number of legally intoxicated motorists either injured or killed in crashes linked to alcohol is rather small.

Illustratively, according to the National Highway Traffic Safety Administration, 17,105 people died in alcohol-related motor vehicle crashes in 2003, a figure that accounts for 40 percent of all traffic-related deaths that year. The Federal Bureau of Investigation’s 2003 Uniform Crime Report indicates that an estimated 1,448,148 motorists were arrested for driving under the influence that year. Finally, the Substance Abuse and Mental Health Services Administration, in a report issued September 2005, found an estimated 30.7 million persons nationwide took alcohol-impaired trips during 2003.3 Even assuming only 10 million alcohol-impaired trips occurred that year, a mere 14.4 percent of impaired motorists were arrested, while 0.17 percent died in alcohol-related incidents. Thus, injury or death most certainly cannot be deemed a “highly likely” consequence of driving while intoxicated. See West v. Aetna Life Ins. Co., 171 F.Supp.2d 856, 904 (N.D.Iowa 2001) (“What ‘common knowledge’ should actually tell 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 in an alcohol related automobile crash, and far more likely to arrive home than to be either arrested, injured, or killed.”).

In effect, under the guise of interpretation, Defendant took it upon itself to rewrite the PAI Policy by adding terms where none previously existed. See Jones, 385 F.3d at 665. Defendant interpreted what should be an inclusive term to exclusionary effect, excluding coverage for accidental injury following from acts which

*630“render[ ] the infliction of serious injury or death reasonably foreseeable.” As applied to Plaintiffs claim, Defendant purports to interpret “accidental” in this manner, but in reality add a new exclusion for accidental injury sustained by legally intoxicated motorists. This sort of post-hoc requirement falls well outside the bounds of Defendant’s discretion as a plan administrator interpreting an ERISA plan, which notably “does not include the authority to add eligibility requirements to the plan.” See Jones, 385 F.3d at 661. What is more, it renders meaningless several express exclusionary provisions, including exclusions for flight in an aircraft while a student pilot, injuries caused in whole or part by war or war-like action, or the use of drugs other than as prescribed by a physician.

In fact, if injury or death were a “highly likely” or even “reasonably foreseeable” consequence of driving while legally intoxicated, one would expect Defendant to expressly exclude from coverage accidents which involved driving under the influence. As the plan drafter, Defendant had every means at its disposal to do so. Yet, when Defendant drafted the PAI Policy, they elected not to include express exclusionary language to that effect. Such language would undoubtedly have foreclosed much litigation in this circuit alone over the coverage in Defendant’s PAI Policy. Notably, according to Plaintiffs brief on appeal, Defendant recently revised its PAI Policy to explicitly exclude coverage for injuries sustained while “driving a vehicle while intoxicated as defined by the laws of the jurisdiction in which the vehicle was being operated.” (See PL’s Br. at 32-33)

At any rate, the scope of activities that “renderf ] the infliction of serious injury or death reasonably foreseeable” is substantially expansive. To accept this formulation — the very words of Defendant in denying PAI benefits here — would be to eviscerate accidental injury coverage in many circumstances where the insured, on the basis of the policy language, would expect to be covered. A few examples prove illustrative here. A motorist driving cross-country attempts to make it another hour before stopping after an 18 hour day behind the wheel. The motorist is not speeding, drives in accordance with the laws, and encounters no other vehicles but, ultimately, fatigue overcomes him. He swerves off the road into a ditch and later dies from injuries sustained in the crash. Another motorist drives 89 miles per hour on a road with a designated speed limit of 70. Arriving at a turn in the road, that motorist spins out, unable to control his vehicle. He suffers injury when his vehicle hits a cement wall in the road’s median and also dies. Finally, a man partakes in bungee jumping for sport. He has successfully completed several jumps before, but on his last jump, his safety harness fails and he plummets to his death. Under the PAI Policy language, an insured would expect to be covered in each of these hypothetical situations. Yet, on Defendant’s reasoning, which the majority affirms today, Defendant could deny coverage by calling the injury or death a “reasonably foreseeable” result of the insured’s conduct.

The reason why an insurance company would most likely not deny coverage in these circumstances is simple: the absence of alcohol, drugs, or other circumstances rendering the action morally questionable. In the final analysis, the “reasonably foreseeable” formulation is little more than a tool enabling plan administrators and courts to transform moral judgments about the insured’s conduct into arbitrary denials of coverage under vaguely worded ERISA plans. See, e.g., Eckelberry v. Reliastar Life Ins. Co., 469 F.3d 340, 346 (4th Cir.2006) (“To characterize harm flowing from [drunk driving] as merely ‘accidental’ *631diminishes the personal responsibility that state laws and the rules of the road require.”); Cozzie, 140 F.3d at 1110 (“We cannot say ... that MetLife’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 ... is incompatible with the goals of the plan.”); Metropolitan Life Ins. Co. v. Potter, 992 F.Supp. 717, 721 (D.N.J.1998) (“ £[D]riving while intoxicated is too great a risk to be tolerated without penalty. In today’s world, people who drink and drive must be charged with responsibility for their own acts.’ ”) (quoting MetLife’s denial letter); see also Adam F. Scales, Man, God and the Serbonian Bog: the Evolution of Accidental Death Insurance, 86 Iowa L. Rev. 173, 299 (2000) (“Drunk driving accidents are simply more senseless, more unforgivable, and altogether more deserving of moral disapprobation than other accidents. But they are accidents nonetheless.”); id. at 302 (“To label merely unforgivable conduct as intentional is to extend forever the moral liability of voluntarily-undertaken acts. But equally voluntary conduct unaccompanied by evil or questionable motives is typically treated differently.”). In some cases, the moral condemnation becomes even more evident when one examines the plan administrator’s or the court’s selection between the two divergent formulations of the Wick-man objective analysis used by courts. See, e.g., Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456, 462, 463-64 (7th Cir.1997) (using the stronger “highly likely” formulation where the record revealed no evidence of illegal drug abuse). I do not condone the pernicious effects of drunk driving, nor those who perpetrate it. But neither would I permit moralistic judgments to lull me to acquiesce in Defendant’s purported “interpretation” of the PAI Policy.

The majority’s social utility calculus only amplifies and enables the sort of moralistic judgments we should be loathe to employ, much less to encourage. It directly links recovery under an “accidental injury” provision to notions of desert. Under this calculus, the plan administrator dare not deny coverage to either motorist in the above examples if they were en route to donate a kidney to their dying mother and had only limited time to reach their destination. However, less beneficial conduct, like delivering a brick of cocaine to a mass drug dealer, would militate in favor of denial of PAI benefits. Applying the social utility calculus, beneficiaries of the motorist rushing to his dying mother’s bedside may recover PAI benefits, while the plan administrator may deny the PAI claim received from beneficiaries of the motorist/drug runner. The problem, of course, is that the behavior leading to the injury — and ultimately, the loss of life — is identical for both motorists, yet the coverage decision will vary with the value society ascribes to the purpose of the conduct. Thus, under the social utility calculus, moral judgments drive the distinction between covered acts and those excluded from coverage.

The majority takes pains to avoid discussing the plain meaning of the PAI Policy, or the inquiry under federal common law. Instead, the majority classifies injury following from “grossly negligent” or “reckless” behavior as by definition not “accidental.” In doing so, the majority imports long established concepts of tort law into the enterprise of interpreting ERISA plans. The federal common law applies basic principles of contract interpretation, often times borrowed from state contract law, when ambiguous terms in ERISA plans raise questions of coverage. See Wickman, 908 F.2d at 1084. In at least one state case within this circuit, Fryman *632v. Pilot Life Ins. Co., 704 S.W.2d 205, 206 (Ky.1986), the Kentucky Supreme Court declined to apply tort law principles in interpreting an accidental injury policy. There, the court indicated “reluctan[ce] to analyze contract terms under principles which have technical meaning in other areas of the law,” and expressly stated that “principles of tort law ... have no application to the contract issue in question.” Id. In fact, the well-established canon of contract interpretation that words be afforded their plain and ordinary meaning requires plan administrators and courts alike to eschew constructs tethered to technical legal concepts like gross negligence and recklessness.

Drawing an analogy from tort law, the majority reasons that if tort law can treat grossly negligent or reckless conduct like intentional conduct, then an ERISA plan administrator can similarly treat grossly negligent or reckless conduct as not accidental. The force of this analogy, it seems, is in pointing out that the insured intended to drive drunk. This may be so, but it says nothing of the insured’s expectations or intentions with respect to the consequence of his voluntary act. The majority thereby harkens back to the distinction between “accidental means” and “accidental ends” long abandoned by the common law. Further, the analogy draws its force from equating intentional with not accidental. If applied, as the terms of the policy require, to the words “bodily injury,” such that “accidental bodily injury” by definition excludes “intentional bodily injury,” this construct renders superfluous the PAI Policy’s express exclusion for intentional “self-inflicted injury.” In effect, the majority joins the plan administrator here in rewriting the PAI Policy.

Under the pretense of interpreting the term “accidental,” Defendant read a new exclusion into its PAI Policy. Defendant’s interpretation, and subsequent denial of PAI benefits, is therefore arbitrary and capricious.

II. SELF-INFLICTED INJURY EXCEPTION

Defendant’s alternative rationale — that the insured died from a “self-inflicted injury” — must also fail as an arbitrary and capricious interpretation of the PAI Policy’s listed exclusion. Expressly, the PAI Policy excludes coverage “for any loss which is contributed to or caused, wholly or pai-tly, directly or indirectly, by ... suicide, attempted suicide or self-inflicted injury, while sane or insane.” (J.A. at 152) Defendant invoked this exclusion, reasoning that “the mental and physical impairments caused by the voluntary consumption of excessive amounts of alcohol constitute intentional self-inflicted injuries under the plan.” (Id. at 202)

A decision of the Eighth Circuit sitting en banc dealt with this precise issue in a very persuasive manner. In King v. Hartford Life & Accident Insurance Co., 414 F.3d 994 (8th Cir.2005) (en banc), the insured died in a motorcycle accident. At the time, he had a blood alcohol content (“BAC”) of 0.19. Id. at 997. His accidental death insurance policy contained an exclusion for “intentionally self-inflicted injury, suicide, or attempted suicide, whether sane or insane,” much like the policy exclusion in the instant case. See id. at 1004. The ERISA plan administrator relied on the intentionally self-inflicted injury exclusion to deny benefits, claiming the insured’s “alcohol intoxication was itself an ‘intentionally self-inflicted injury’ that ‘contributed to’ his injuries and death.” Id. Poignantly, rejecting the plan administrator’s interpretation, the King court observed that “[o]ne rarely thinks of a drunk driver who arrives home safely as an ‘injured’ party, and to define drinking to the *633point of intoxication as an ‘intentionally self-inflicted injury ... ’ is at least ‘a startling construction.’” Id. (citation omitted). Additionally, in light of other enumerated exclusions in the policy, the King court found the ERISA plan administrator’s interpretation would render meaningless exclusions for losses caused by “taking drugs ... unless prescribed ... by a licensed physician.” Id. at 1004-05.

On appeal, Defendant contends that the “intentional self-inflicted injury” was the insured’s voluntary intoxication “to the extent that [his] BAC was 0.321, a BAC evidencing extreme injuries to mind and body, probably including loss of consciousness.” (Defl’s Br. at 50) That intentional self-inflicted injury, the argument goes, then partially contributed to the loss, the insured’s death. However, this argument is not supported by substantial evidence in the administrative record, which says nothing of “extreme injuries to mind and body” or “loss of consciousness” occurring before the accident. Additionally, like the policy in King, the PAI Policy enumerated an exclusion for “use of any drug or medicine unless taken on the advice of and in accordance with the direction of a licensed physician.” (J.A. at 152) As in King, Defendant’s interpretation would render the “drug” exclusion meaningless. See King, 414 F.3d at 1005. Consequently, I agree with the district court’s conclusion that Defendant arbitrarily and capriciously interpreted the “self-inflicted injury” exclusion in order to deny PAI benefits to Plaintiff.

III. LACK OF DELIBERATE REASONING PROCESS

Finally, nothing on the record indicates that Defendant’s interpretation and ultimate denial of PAI benefits here followed from a deliberate and principled reasoning process. First, Defendant denied the PAI benefits by way of a “DWI denial” form letter which, among other things, rattled off a list of cases in an apparent attempt to insulate the denial from even the most minimally searching review. {See J.A. at 227) Defendant’s denial is more akin to an automatic rejection triggered by the fact of the insured’s intoxication than to the result of any truly deliberative interpretive enterprise. Second, Defendant issued conflicting denial letters. The initial denial letter stated that “[b]ecause of his voluntary alcohol consumption and attempt to drive while so impaired, [the insured’s] death was directly the result of accidental injuries, independently of all other causes.” (Id. at 225-26 (emphasis added)) Plaintiff seized upon this statement in appealing the denial. Defendant’s subsequent letter upholding its initial denial of the PAI claim called it a “typographical error,” noting the sentence should have read, “[the insured’s] death was not directly the result of accidental injuries.” (Id. at 201-02) Third, at oral argument before this court, Defendant’s counsel could not articulate the criteria Defendant applies in resolving claims like Plaintiffs. Although not dispositive, the apparent lack of process does little to indicate that Defendant’s denial was not arbitrary and capricious.

For all of the foregoing reasons, I believe Defendant acted arbitrarily and capriciously when it interpreted the PAI Policy — specifically, the term “accidental” and the express exclusion for “intentional self-inflicted injury.” I would affirm the district court’s well-reasoned opinion.

. On the basis of the administrative record, I assume for purposes of this dissent that the insured was legally intoxicated at the time of the crash.

. Were this Court tasked with interpreting the language de novo, in view of the word’s apparent ambiguity, the rule of contra proferen-tum would apply. See Marquette Gen. Hosp. v. Goodman Forest Indus., 315 F.3d 629, 632 n. 1 (6th Cir.2003) (citing Perez, 150 F.3d at 557 n. 7). Ambiguity in the word '‘accident” would then be construed against the plan administrator, thus extending coverage to the insured here. Because we review the plan administrator's decision under an arbitrary- and-capricious standard, the rule is not determinative.

. The findings were annual averages calculated on the basis of combined data from 2002 and 2003. See Arrests for Driving Under the Influence Among Adult Drivers, National Survey on Drug Use and Health, http://oas. samhsa.gov/2k5/DUIarrests/DUIarrests.pdf.