Case: 20-20165 Document: 00515819666 Page: 1 Date Filed: 04/13/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 13, 2021
No. 20-20165 Lyle W. Cayce
Clerk
Luis Lebron,
Plaintiff—Appellant Cross-Appellee,
versus
National Union Fire Insurance Company of Pittsburgh,
Pennsylvania; AIG Claims, Incorporated;
Defendants—Appellees Cross-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-3935
Before Jones, Clement, and Graves, Circuit Judges.
Per Curiam:*
Plaintiff-appellant Luis Lebron appeals a district court’s judgment
upholding a denial of benefits under an accidental death insurance policy. We
affirm.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-20165 Document: 00515819666 Page: 2 Date Filed: 04/13/2021
No. 20-20165
I.
Luis worked as a mechanic for The Boeing Company when he
purchased an accidental death insurance policy (the “Policy”) for himself
and his wife, Barbara, through Boeing’s benefits plan. The Policy excludes
coverage for death caused “in whole or in part” by “[i]llness, sickness,
disease, bodily or mental infirmity, medical or surgical treatment (unless
treating a covered injury), or bacterial or viral infection, regardless of how
contracted (except when bacterial infection results from an accidental cut or
wound or accidental food poisoning).” The plan delegates authority to
defendant and cross-appellant National Union Fire Insurance Company of
Pittsburgh, Pennsylvania (“NUFIC”) to determine benefit eligibility as the
plan administrator. The Policy “is governed by the laws of Washington” to
the extent not preempted by the Employee Retirement Income Security Act
of 1974 (“ERISA”).
Barbara was later diagnosed with end-stage renal disease associated
with hypertensive cardiovascular disease, which required her to undergo
regular dialysis treatment. To facilitate her treatment, doctors placed a
dialysis catheter near her groin. Because Barbara had problems with blood
clotting during her dialysis treatment, she was prescribed Warfarin, a blood
thinner.
On December 11, 2017, Barbara died unexpectedly when she
accidentally cut her dialysis catheter with scissors while changing a bandage
around the catheter, causing her to bleed to death. Investigators ruled her
death an accident; the medical examiner described the circumstances of
Barbara’s death as “indicative of the decedent inadvertently cutting across
the ports of her inguinal dialysis catheter while attempting to change
bandaging.” The medical examiner concluded that Barbara’s death was
caused by “exsanguination from cut dialysis catheter placed for treatment of
2
Case: 20-20165 Document: 00515819666 Page: 3 Date Filed: 04/13/2021
No. 20-20165
end-stage renal disease associated with hypertensive cardiovascular
disease.”
Luis claimed benefits under the Policy and later submitted Barbara’s
death certificate. NUFIC concluded that Luis’ claim was not covered under
the Policy, in part because Barbara’s death was at least partially caused by
medical treatment. Luis appealed the denial and submitted the medical
examiner’s report and letters from two doctors, including one who had
treated Barbara, stating that Barbara’s death was an accident not attributable
to “an expected medical complication.” NUFIC’s appeals board upheld the
denial of benefits “because [Barbara’s] injury did not result directly and
independently of all other causes in her death.” Lebron then sued NUFIC in
district court, alleging ERISA violations.
Before the district court, the parties filed cross-motions for summary
judgment on the administrative record. The district court referred the matter
to a magistrate judge, who recommended upholding the denial of benefits.
The magistrate judge reviewed the denial de novo but concluded that Luis
was not entitled to benefits because Barbara’s “changing of her bandage falls
within the meaning of medical treatment in this Circuit, and [because] the
accidental cutting of her inguinal catheter was associated with that medical
treatment.” All parties objected to the magistrate judge’s recommended
disposition: Luis objected to the merits conclusion, while the defendants
objected to the magistrate judge’s de novo review. The district court adopted
the magistrate judge’s recommended disposition in full, and this appeal and
cross-appeal timely followed.
II.
“Standard summary judgment rules control in ERISA cases.”
Ramirez v. United of Omaha Life Ins. Co., 872 F.3d 721, 725 (5th Cir. 2017)
(citations omitted). De novo review is the “default” standard of review
applicable to both factual and legal bases of ERISA benefits decisions unless
3
Case: 20-20165 Document: 00515819666 Page: 4 Date Filed: 04/13/2021
No. 20-20165
an ERISA plan contains a valid, lawful delegation of discretionary authority,
in which case the decision is reviewed for abuse of discretion. Ariana M. v.
Humana Health Plan of Tex., Inc., 884 F.3d 246, 248 (5th Cir. 2018) (en banc).
Although NUFIC cross-appeals—contesting the magistrate judge’s decision
that the Policy’s discretionary clause is invalid under Texas law 1 and arguing
that de novo review applies—we decline to address this issue because Luis’
argument fails under both de novo review and abuse-of-discretion review.
III.
The parties do not dispute that Barbara’s death resulted from an
accident and therefore would be covered but for the “medical or surgical
treatment” exclusion. Accordingly, the issue is whether Barbara’s actions in
changing a bandage around her dialysis catheter constitute “medical or
surgical treatment,” which the Policy excludes from coverage. The Policy
does not define “medical or surgical treatment.”
“Federal common law governs rights and obligations stemming from
ERISA-regulated plans, including the interpretation” of the Policy provision
at issue here. Provident Life & Accident Ins. Co. v. Sharpless, 364 F.3d 634, 641
(5th Cir. 2004). See Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 331 (5th
Cir. 2014). We may also apply analogous state law when such guidance is
consistent with congressional policy concerns. See Green, 754 F.3d at 331 n.5.
“When construing ERISA plan provisions, courts are to give the language of
an insurance contract its ordinary and generally accepted meaning if such a
meaning exists.” Sharpless, 364 F.3d at 641. We “interpret the contract
language in an ordinary and popular sense as would a person of average
intelligence and experience, such that the language is given its generally
accepted meaning if there is one.” Wegner v. Standard Ins. Co., 129 F.3d 814,
1
Texas Insurance Code § 1701.062 bans insurers’ use of discretionary clauses in
Texas. See Rittinger v. Healthy All. Ins. Co., 914 F.3d 952, 955 (5th Cir. 2018).
4
Case: 20-20165 Document: 00515819666 Page: 5 Date Filed: 04/13/2021
No. 20-20165
818 (5th Cir. 1997) (internal quotation marks omitted). “Only if the plan
terms remain ambiguous after applying ordinary principles of contract
interpretation are we compelled to apply the rule of contra proferentum and
construe the terms strictly in favor of the insured.” Id. “An insurance
contract is ambiguous if it is susceptible to two or more reasonable
interpretations that can fairly be made,” thus supporting contradictory
results. Dahl-Eimers v. Mut. of Omaha Life Ins. Co., 986 F.2d 1379, 1381 (11th
Cir. 1993).
The term “medical treatment” is unambiguous and has a generally
accepted meaning, which we are bound to apply. Wegner, 129 F.3d at 818.
Webster’s Third New International Dictionary defines “medical treatment”
as “the action or manner of treating a patient medically or surgically,” and
to “treat” is “to care for (as a patient or part of the body) medically.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2435 (3d ed. 2002).
The word “treatment” thus is a “broad term covering all the steps taken to
affect a cure of an injury or disease; including examination and diagnosis as
well as application of remedies.” BLACK’S LAW DICTIONARY 1502 (6th ed.
1990). Barbara’s actions in changing the bandages around her dialysis
catheter fall under this broad term because, by changing her bandages in
preparation for a dialysis appointment scheduled later that day, she was
facilitating treatment for her disease.
Luis argues that the term “medical or surgical treatment” is
nonetheless ambiguous because it is normally understood to encompass what
a doctor or healthcare provider does to a patient, rather than covering what a
patient does to herself. But in Barkerding v. Aetna Life Insurance Company, 82
F.2d 358 (5th Cir. 1936), this court defined “medical or surgical treatment”
to include “the things done by the patient to carry out specific directions
given for these ends by a physician.” Id. at 359. Therefore, under our caselaw,
the phrase does not turn on who is providing the treatment. Although Luis
5
Case: 20-20165 Document: 00515819666 Page: 6 Date Filed: 04/13/2021
No. 20-20165
argues that Barkerding is distinguishable because there is no evidence that her
doctors instructed her to change her catheter bandages, the record reflects
that it was not uncommon for Barbara to change bandages to better facilitate
dialysis. Further, Barkerding and the exclusionary term’s plain meaning
dictate that, to be covered under the policy, the accident must result
independently of medical treatment. That is not the case here. Barbara’s
tragic death is directly attributable to her medical treatment; she would not
have died from exsanguination had her illness not necessitated treatment via
a catheter and bandages to keep the catheter intact. Barbara’s actions in
changing the bandages around her catheter to prepare for dialysis treatment
thus amount to “steps taken to affect a cure of” her renal disease, BLACK’S
LAW DICTIONARY at 1502, and therefore her death was caused at least “in
part by” medical treatment.
Moreover, courts uniformly apply the “medical treatment” exclusion
where an accidental “mishap in the course of treatment” causes death
because “the normal understanding” is that “injuries caused not by the
illness itself but by the treatment of the illness” are excluded under policies
similar to the one at issue in this case. Senkier v. Hartford Life & Accident Ins.
Co., 948 F.2d 1050, 1052-54 (7th Cir. 1991) (no coverage where patient
suffering from Crohn’s Disease had a catheter implanted, which later
inexplicably shifted to puncture the patient’s heart, causing death). See, e.g.,
Anderson-Tully Co. v. Pan Am. Life Ins. Co., No. 96-5348, 1997 WL 359079, at
*1 (6th Cir. 1997) (unpublished) (no coverage where patient fell from hospital
bed, dislodging arterial sheath and causing death); Whetsell v. Mut. Life Ins.
Co. of N.Y., 669 F.2d 955, 957 (4th Cir. 1982) (no coverage where death was
caused by accidental use of contaminated IV to administer antibiotics). Cases
in which a patient overdoses on prescribed medication or in which the
insured is injured by a doctor’s malpractice are analogous, and in those cases
courts also uniformly conclude that the mishaps are caused by medical
6
Case: 20-20165 Document: 00515819666 Page: 7 Date Filed: 04/13/2021
No. 20-20165
treatment and, therefore, are excluded from coverage. See, e.g., Cady v.
Hartford Life & Accidental Ins. Co., 930 F. Supp. 2d 1216, 1228 (D. Idaho
2013) (insured’s overdose on medication prescribed to treat mental illness
not covered because it fell under policy exclusion for injury caused indirectly
by medical treatment); Wilson v. Bus. Men’s Assurance Co., 181 F.2d 88, 89
(9th Cir. 1950) (medical treatment extended to drug prescribed for treating
insured’s ailment); Pickard v. Transamerica Occidental Life Ins. Co., 663 F.
Supp. 126, 127 (E.D. Mich. 1987) (death due to drinking wrong solution in
preparation for colonoscopy was medical treatment under accidental death
policy); Reid v. Aetna Life Ins. Co., 440 F. Supp. 1182, 1183–84 (S.D. Ill. 1977)
(accidental injection of lethal drug considered death caused by medical and
surgical treatment). “It appears that every court that has considered similar
exclusionary clauses has held such provisions to exclude from coverage death
caused by various mishaps occurring during the course of medical
treatment.” Whetsell, 669 F.2d at 956 & n.1 (gathering numerous supporting
cases).
Because the term “medical or surgical treatment” unambiguously
covers Barbara’s actions in changing her bandages in preparation for an
upcoming dialysis treatment, there is no genuine issue of material fact that
the Policy does not cover Barbara’s death. We therefore AFFIRM the
district court’s judgment below.
7