[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 5, 2010
No. 09-10222 JOHN P. LEY
________________________ ACTING CLERK
D. C. Docket No. 06-03014-CV-MHS-1
JAMES M. CAPONE,
Plaintiff-Appellant,
versus
AETNA LIFE INSURANCE COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 5, 2010)
Before MARCUS, FAY and ANDERSON, Circuit Judges.
FAY, Circuit Judge:
Plaintiff-Appellant James Capone struck his head on the bottom of the ocean
while diving in the Bahamas, paralyzing himself from the neck down. Capone
sought benefits under the Accidental Death and Personal Loss provision of his
employee health insurance policy administered by Aetna Life Insurance Company
(Aetna). Aetna denied Capone’s claim for benefits twice, prompting this civil
action. The district court granted Aetna’s motion for summary judgment, holding
that Aetna properly applied the plan’s accidental means and alcohol exclusion
provisions barring recovery. We disagree, holding that Aetna’s investigation was
insufficient to support their conclusions.
I. FACTUAL AND PROCEDURAL BACKGROUND
Capone, an Ohio resident, was an employee of Dent Wizard International
Inc., (Dent Wizard) a Missouri company and wholly-owned subsidiary of Cox
Enterprises, Inc. (Cox), a Georgia corporation. As an employee of Dent Wizard,
Capone participated in Cox’s Welfare Benefit Plan. The Welfare Benefit Plan is
governed by the Employee Retirement Income Security Act, 29 U.S.C. §1001 et
seq. Although Cox self-funded the majority of the benefits available under the
plan, the Accidental Death and Personal Loss benefits were funded through an
insurance policy with Aetna. The policy had a choice of law provision, which
designated Georgia as the governing jurisdiction.
In April 2004, Capone attended a Dent Wizard employee training and
2
incentive program in the Bahamas. At approximately 3:16 p.m., Capone joined a
group of guests jumping and diving from a dock adjacent to the Wyndham Nassau
Resort. On his first dive, Capone dove into the ocean without incident. On his
second dive, Capone struck his head on the bottom, fracturing his spine and
suffering permanent quadriplegia.1 At 4:20 p.m. Capone was admitted to the
Princess Margaret Hospital in Nassau and stabilized.
As part of their admittance procedure, the hospital performed a blood serum
test and entered the results at 5:22 p.m.2 The alcohol in Capone’s blood serum
measured 243.9 mg/dL, which was later converted to a blood alcohol content
(BAC) of 0.244 by Aetna’s claims administrator.3 The next day, Capone was
transferred from the Bahamian hospital to Jackson Memorial Hospital in Miami,
Florida for further treatment. Both hospitals characterized his injury as a result of
diving into shallow water and the Miami hospital labeled the incident as a
1
Paralysis of all four limbs. DORLAND ’S ILLUSTRATED MEDICAL DICTIONARY 1399
(28th ed.)
2
Blood Serum is blood without platelets. DORLAND ’S ILLUSTRATED MEDICAL
DICTIONARY 211 (28th ed.) Blood serum can be converted to whole blood alcohol content by an
average ratio of 1/1.18 (with a dominator range of 1.10 to 1.35). Dominick J. Di Maio &
Vincent J.M. Di Maio, Forensic Pathology, 466 (1989).
3
Using the average denominator of 1.18, Capone’s serum alcohol content of 243.9
mg/dL equates to a BAC of 0.207. Even using the highest possible calculation, Capone’s BAC
measures 0.221, substantially less than the .244 claimed by Aetna. For comparison, a BAC of
0.08 is the legal driving limit in every state.
3
“+ETOH diving accident”4 and recorded that Capone “noted a history of alcohol
abuse.”
Capone sought benefits under the Accidental Death and Personal Loss
provision of his employee Welfare Benefits Plan. Dent Wizard submitted
Capone’s initial claim for benefits to Aetna in June 2004, stating that Capone
“dove off pier and broke neck.” Aetna received a second claim form describing the
injury more specifically as a “diving accident” that “resulted [in] C6-7 fracture
with complete C5-6 quadriplegia.”
After several requests to Capone, Aetna received his medical records and
toxicology report in November 2005. On February 1, 2006, Aetna denied
Capone’s claim for benefits on two independent grounds. First, Aetna claimed that
Capone intentionally exposed himself to unnecessary and foreseeable risks by
voluntarily diving from a fifteen to twenty foot high dock into the ocean.
Therefore, his injury was not the result of an “accident” as defined by the policy.
Aetna based its denial on an accident report from the Wyndham Nassau Resort,
and information provided by Alfred Rolle, a security officer for the Wyndham,
who indicated that “no diving” signs were posted on the dock and ignored by
Capone.
4
ETOH is the chemical abbreviation for ethyl alcohol or ethanol, the medical term for
alcohol.
4
Second, Aetna claimed that even if his injuries were the result of an
“accident,” no benefits were payable under the policy for accidents “caused or
contributed to by the use of alcohol.” Aetna cited Capone’s medical records and
the toxicology report in its denial. Aetna stated that because Capone was
intoxicated, he could not recover under his policy.
Appealing Aetna’s denial, Capone claimed that jumping from the dock was a
common practice. Capone stated that, contrary to Aetna’s assertion, “no diving”
signs were not posted and a nearby lifeguard did not stop the group from diving.
Capone supported his appeal with photographic evidence of the dock and resort
area, taken two weeks after his injury.
The photographs showed the dock sitting four to five feet above the water
instead of the fifteen to twenty feet claimed by Aetna. The photographs also
showed several people jumping off the dock, though no people were diving. “No
diving” signs were not visible in the photographs. Depositions of Wyndham
employees later revealed that the “no diving” signs had been blown away months
earlier and never been replaced. No lifeguard was visible in the photographs.
Addressing the alcohol exclusion, Capone argued that Aetna failed to
adequately specify how alcohol contributed to his injury. Capone challenged the
accuracy and reliability of the toxicology report due to the hospital’s failure to
5
provide calibration testing of its equipment. Capone also contended that an
accurate conversion of his blood serum level put his BAC at 0.18 instead of the
0.244 claimed by Aetna.5
Capone further alleged that because the accident occurred at 3:16 p.m., and
he had consumed alcohol in the hour immediately preceding the accident, his
actual BAC at the time of the accident would have been substantially less than 0.18
due to the delay in alcohol absorption. Capone cited the same medical treatise
used by Aetna to support his argument. Finally, Capone contended the accident
was caused by a sudden change in water depth due to wave action and not his
alcohol consumption.
Capone supported his appeal with an eyewitness affidavit signed by
Capone’s coworker and friend, Kevin Zeh. Zeh attested that both he and Capone
successfully dove from the dock prior to Capone’s accident, and that other guests
were jumping and diving as well. Zeh stated that he did not see Capone “acting
inappropriately” or having “red eyes, slurred speech, or difficulty walking,”
immediately preceding the accident.
In a letter dated May 31, 2006, Aetna denied Capone’s appeal. Aetna
concluded that a voluntary and intentional dive into the ocean was not an
5
0.18 represent the lowest possible BAC within the accepted ratio range for converting
the blood serum level to blood alcohol content.
6
accidental means of injury under Georgia law, despite the fact that the resulting
injury may have been unexpected. Additionally, Aetna explained that the
toxicology results, showing a BAC of 0.244, barred his recovery. Aetna relied on a
learned medical treatise, which stated that someone with a BAC of 0.20 to 0.30
would exhibit the following behavior: “staggering, grossly impaired, drunk; may
be lethargic and sleepy or hostile and aggressive.”6 Aetna noted that even if
Capone’s BAC was 0.18 as claimed by his appeal letter, the treatise stated that he
would still show signs of “increas[ed] impairment of sensory motor activities,
reaction times, attention, visual activity, and judgment.”7 Aetna dismissed
Capone’s challenge to the reliability of the blood serum test because Capone failed
to provide any expert or medical documentation to support his assertions.
Capone filed this action for benefits against Aetna, Cox, and Cox’s Welfare
Benefits Plan. Capone claimed a wrongful denial of benefits under 29 U.S.C.
§1132(a)(1)(B). The district court dismissed all claims and defendants except for
the benefits claim against Aetna. In response to Aetna’s motion, the district court
issued a preliminary order stating that the standard of review for Capone’s ERISA
benefits claim was this circuit’s “heightened arbitrary and capricious standard”
because Aetna was a conflicted administrator acting as both evaluator and payor of
6
Dominick J. Di Maio & Vincent J.M. Di Maio, Forensic Pathology, 450 (1989).
7
Id.
7
claims.
After conducting limited discovery, Capone and Aetna filed cross motions
for summary judgment. On de novo review, the first step of ERISA’s arbitrary and
capricious standard, the district court concluded that Aetna’s claim decision was
correct and granted Aetna’s motion for summary judgment. Capone argues that
the district court erred by: (1) applying the incorrect standard of review under
ERISA in reviewing his claims; (2) denying his claim under Georgia’s “accidental
means” standard; and (3) applying the insurance plan’s alcohol exclusion as an
alternative, independent ground for denial.
II. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judgment, applying
the same legal standards governing the district court’s decision. Sierra Club, Inc.
v. Leavitt, 488 F.3d 904, 911 (11th Cir. 2007).
ERISA provides no standard for reviewing decisions of plan administrators
or fiduciaries. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109, 109 S.
Ct. 948, 953 (1989). However, the Supreme Court in Firestone established three
distinct standards for reviewing an ERISA plan administrator’s decision: (1) de
novo where the plan does not grant the administrator discretion; (2) arbitrary and
8
capricious where the plan grants the administrator discretion;8 and (3) heightened
arbitrary and capricious where the plan grants the administrator discretion and the
administrator has a conflict of interest. See Buckley v. Metro. Life, 115 F.3d 936,
939 (11th Cir.1997). Recent cases from this circuit have expanded the Firestone
test into a six-step analysis to guide district courts in reviewing an administrator’s
benefits decision:
(1) Apply the de novo standard to determine whether the
claim administrator's benefits-denial decision is “wrong”
(i.e., the court disagrees with the administrator's
decision); if it is not, then end the inquiry and affirm the
decision.
(2) If the administrator's decision in fact is “de novo
wrong,” then determine whether he was vested with
discretion in reviewing claims; if not, end judicial inquiry
and reverse the decision.
(3) If the administrator's decision is “de novo wrong” and
he was vested with discretion in reviewing claims, then
determine whether “reasonable” grounds supported it
(hence, review his decision under the more deferential
arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry
and reverse the administrator's decision; if reasonable
grounds do exist, then determine if he operated under a
conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm
the decision.
(6) If there is a conflict of interest, then apply heightened
arbitrary and capricious review to the decision to affirm
8
Cases in our circuit equate the arbitrary and capricious standard with the abuse of
discretion standard. See Jett v. Blue Cross & Blue Shield of Ala. Inc., 890 F.2d 1137, 1139 (11th
Cir. 1989).
9
or deny it.
Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132, 1137 (11th Cir. 2004)
overruled on other grounds by Doyle v. Liberty Life Assurance Co. of Boston, 542
F.3d 1352 (11th Cir. 2008).
Until recently, the hallmark of the heightened arbitrary and capricious
standard was its burden shifting requirement. When a plan administrator had a
conflict of interest by both reviewing and paying claims, “the burden shifts to the
fiduciary to prove that its interpretation of plan provisions committed to its
discretion was not tainted by self-interest.” Brown v. Blue Cross & Blue Shield of
Ala. Inc., 898 F.2d 1556, 1566 (11th Cir. 1990). However, in Metropolitan Life
Ins. Co. v. Glenn, the Supreme Court called into question the Eleventh Circuit’s
heightened arbitrary and capricious standard. 128 S. Ct. 2343, 2351 (2008).
Glenn dealt with the denial of benefits under an employee benefit plan governed by
ERISA. Glenn agreed that the appropriate standard for reviewing a conflicted
administrator’s decision was arbitrary and capricious, but held that an
individualized inquiry is required to determine the circumstances of each decision.
Id. As such, a generalized test is inappropriate. Id.
In Doyle, this circuit recognized that Glenn implicitly overrules Brown and
other cases requiring courts to apply the heightened standard to a conflicted
10
administrator’s benefits decision. 542 F.3d at 1359. Instead, “the existence of a
conflict of interest should merely be a factor for the district court to take into
account when determining whether an administrator's decision was arbitrary and
capricious.” Id. at 1360. Furthermore, “the burden remains on the plaintiff to
show the decision was arbitrary; it is not the defendant's burden to prove its
decision was not tainted by self-interest.” Id.
The parties dispute the impact of Doyle on the six-step methodology set
forth in Williams. However, the district court found and we agree that the Williams
methodology remains intact except for the sixth step. In Doyle itself, this circuit
approved the district court’s use of the Williams methodology, as modified by
Glenn. See also White v. Coca Cola Co., 542 F.3d 848, 854 (11th Cir. 2008)
(“Although Glenn affects the sixth step of Williams, Glenn does not alter our
analysis unless Coca-Cola operated under a conflict of interest”). Therefore, we
will apply the Williams methodology as modified by Glenn. This requires the
court to first determine whether Aetna’s denial of benefits was de novo wrong.
III. DISCUSSION
A decision is “wrong” if, after a de novo review, “the court disagrees with
the administrator's decision.” Williams, 373 F.3d at 1138. We find that Aetna’s
decision to deny benefits was de novo wrong.
11
A. S TANDARD OF R EVIEW
The district court ruled that the heightened arbitrary and capricious standard
was the appropriate standard to review the administrator’s decision. Despite this
ruling, the district court ordered that the scope of discovery was not limited to the
administrative record compiled by Aetna insofar as additional discovery could
shed light on “how the fiduciary reached its decision,” or in examining “whether an
administrator fulfilled his or her fiduciary duties.” This expansive discovery falls
in line with a de novo review. Also, the district court ultimately rendered its
decision solely on de novo grounds. As our circuit’s ERISA standard of review
incorporates the de novo inquiry as the first step in the arbitrary and capricious
standard, it is unnecessary for us to go beyond a de novo review at this time. See
U.S.C.A. § 2111 (2008) (“On the hearing of any appeal or writ of certiorari in any
case, the court shall give judgment after an examination of the record without
regard to errors or defects which do not affect substantial rights of the parties”).
B. C HOICE OF L AW
Capone contends that allowing Georgia law to apply would frustrate the twin
goals of ERISA: protecting employee interests and providing uniformity of
benefits administration. “The pertinent question is whether the principles of
liability agreed upon by the parties are inconsistent with the language of ERISA or
12
the policies that inform that statute and animate the common law of the statute.”
Buce v. Allianz Life Ins. Co., 247 F.3d 1133, 1148 (11th Cir. 2001). In Buce, we
recognized that ERISA’s preemptive authority sweeps broadly but concluded that
there was no evidence in the statutory language or common law of ERISA
suggesting that a valid choice of law provision would be subversive to ERISA
policy. See id.
Capone further argues that it is fundamentally unfair to apply a Georgia
choice of law provision to a claim filed by an Ohio Citizen, who worked for a
Missouri company and was injured in the Bahamas. “Where a choice of law is
made by an ERISA contract, it should be followed, if not unreasonable or
fundamentally unfair.” Id. at 1149.
While we recognize Capone’s argument, the policy was contracted with a
Georgia corporation, contained a valid choice of law provision designating the
state of delivery as the governing jurisdiction and was properly delivered in
Georgia. While confronting a similar argument in Buce, we held that although the
doctrine of “accidental means” may no longer be fashionable, its use under
Georgia law “can hardly be characterized as ‘unreasonable,’ let alone
‘fundamentally unfair.’” Id. As such, we conclude that Georgia law applies to
Capone’s claim.
13
C. A CCIDENTAL R ESULTS V. A CCIDENTAL M EANS
Georgia law distinguishes between insurance coverage for accidental results
and coverage for injuries caused by accidental means. See Provident Life &
Accident Ins. v. Hallum, 576 S.E.2d 849, 851 (Ga. 2003). In Hallum, the Georgia
Supreme Court explained that an “accidental result” is an injury that is unexpected
but arises from a conscious voluntary act, without any intervening circumstances.
See id. Conversely, an injury from “accidental means” is one that is the result of
an unforeseen act that was involuntarily or unintentionally done. See id. The
insurance policy has two relevant provisions:
(1)This plan pays a benefit, if, while insured, a person
suffers a bodily injury caused by an accident: and if,
within 365 days after the accident and as a direct result of
the injury, he or she loses:
• His or her life.
• A hand, by actual severance at or above the
wrist joint.
• A foot, by actual severance at or above the
ankle joint.
• An eye, involving irrecoverable and complete
loss of sight in the eye.
• His or her speech or hearing, the loss must be
total and permanent.
• The thumb and index finger of the same hand,
by actual severance of entire digit. Loss of
thumb and index finger means complete
severance through or above the
metacarpophalangeal joint of both digits.
...
(2) This plan also pays a benefit if, while insured, a
14
person suffers a bodily injury in an accident and if,
within 30 days after the accident and as a direct result of
the injury, he or she is stricken with one of the following
forms of paralysis:
• Quadriplegia: the entire and irrecoverable
paralysis of both upper and lower limbs.
• Paraplegia: the entire and irrecoverable
paralysis of both lower limbs.
• Hemiplegia: the entire and irrecoverable
paralysis of the upper and lower limbs on one
side of the body.
• Uniplegia: the entire and irrecoverable paralysis
of one limb.
(emphasis added). Georgia courts have consistently held the language in the first
provision, “caused by an accident,” to mandate accidental means. See Laney v.
Continental Insurance Co., 757 F.2d 1190, 1192 (11th Cir. 1985). The reasoning
deduces that in the phrase “accidental means,” the word accidental is an adjective
describing the quality of the events precipitating the ultimate result. The focus is
on the occurrence or happening which produces the result, not the result itself. See
id. The distinction is grounded on the idea that "means" is synonymous with
"cause;" that the difference between "accidental means" and the other terms is the
difference between cause and effect. See Winters v. Reliance Standard Life Ins.
Co., 433 S.E.2d 363 (Ga. App. 1993).
There is no settled interpretation for the language in the second provision.
While there is no precedent directly on point, Capone points to the language
15
examined in Hallum. 576 S.E.2d at 849. Hallum dealt with the phrase “accidental
bodily injuries,” holding that the phrase mandated an accidental results standard.
Hallum reasoned that by using “accidental” to modify the cause or means of any
injuries, the policy “places the focus of the coverage on the injuries, not the means
that caused the injury.” Id.
We have serious doubt as to whether the language in the second provision
would be controlled by Georgia’s accidental means standard. We believe that the
language used closely resembles the language used by the Georgia Supreme Court
in Hallum. However, it makes no difference because we hold that under the facts
of this case, it appears Capone would qualify under either reading.
D. A CCIDENTAL M EANS
Generally, for an injury to result from accidental means, it must be the
“unexpected result of an unforseen or unexpected act which was involuntarily and
unintentionally done.” Johnson v. Nat. Life, etc. Ins. Co., 90 S.E.2d 36, 37 (Ga.
App. 1955). Georgia law is clear that “where an unusual or unexpected result
occurs, by reason of the doing of an intentional act, with no mischance, slip or
mishap occurring” in the act, the ensuing injury is not caused by accidental means.
See Laney, 757 F.2d at 1191. In other words, an accident is never present when a
deliberate act is performed, unless some additional, unexpected, independent, and
16
unforeseen happening occurs which produces or brings about the result of injury or
death. See Jackson v. Nat’l Life & Accident Ins. Co., 202 S.E.2d 711, 712 (Ga.
App. 1973).
However, when something unforeseen occurs in the doing of the act, the
death or injury is held to be within the protection of policies insuring against death
or injury from accident. See Commercial Cas. Ins. Co. v. Matthews, 195 S.E. 887,
892 (Ga. App. 1938). Therefore, in order to recover under an accidental means
standard, it is incumbent upon the plaintiff to show that in the carrying out of the
act which preceded the injury something “unforeseen, unexpected, or unusual
occurred,” causing the result to differ from the natural or probable consequence of
his voluntary action. Thompson v. Prudential Ins. Co. of America, 66 S.E.2d 119,
122 (Ga. App. 1951). Even if Capone’s dive was intentional, if there was an
intervening unexpected act, Capone would be entitled to recover under his policy.
Other courts around the country have confronted the issue. While we
recognize that these courts were not dealing with Georgia law, the law of
accidental means is peculiar and we find these courts’ reasoning persuasive. In
U.S. Mut. Acc. Ass'n v. Barry, the Supreme Court held that although the plaintiff
voluntarily jumped off a platform, he could still recover under an “accidental
means” policy. 131 U.S. 100, 121, 9 S. Ct. 755, 762 (1889). The Court presumed
17
that he intended to land safely like his companions before him and held that his
resulting injury was unexpected and therefore constituted an accident under the
policy.9 See id. Barry reasoned that, if in the carrying out of the act that precedes
the death or injury, although an intentional act, something unforeseen, unexpected,
and unusual occurs which produces the death or injury, it is accidentally caused or
results from accidental means. 131 U.S. at 109, 9 S. Ct. at 759.
In Knight v. Metropolitan Life Ins. Co., the Arizona Supreme Court
overturned a trial court’s denial of recovery in the case of an experienced diver
who dove off the Coolidge Dam, holding that his injury was covered under an
accidental means policy because he hit the water differently than he planned. 437
P.2d 416, 421 (Ariz. 1968). The Supreme Court of New Jersey allowed recovery
under an accidental means policy after the insured voluntarily jumped off a boat in
order to swim to shore. See Riker v. John Hancock Mut. Life Ins. Co., 30 A.2d 42,
43 (N.J. 1943). Riker reasoned that even though the plaintiff’s actions were
intentional, he had “intended to reach the nearby shore in safety.” Id. at 44.
In the instant case, Capone made the dive once without incident. Other
individuals were diving or jumping in a contemporaneous fashion without incident.
9
Following this reasoning, if Capone had intended on making a shallow dive but for
some unknown reason landed in the water at a different angle, his injury would have been caused
by “accidental means.”
18
The evidence demonstrates that diving from the dock was a common practice.
Prior occurrence of similar acts that did not result in injury is a strong indicator of
changed conditions. As such, there was most likely some unforeseen or
unintended condition or combination of circumstances that contributed to Capone’s
injury on that particular dive.
Capone bears the burden of proving a prima facie case of entitlement to
contractual benefits under the policy. See Con’t Assurance Co. v. Rothell, 181
S.E.2d 283, 285 (Ga. 1971). Capone contends that an unexpected wave created the
shallowness that had not otherwise existed. If so, such a wave is a force external to
Capone’s body that caused or contributed to the unforseen result. The burden then
shifts to Aetna to prove that Capone is not entitled to benefits. See id.
Aetna’s position is that when Capone voluntarily dove into shallow
water, the resulting injury was foreseeable, regardless of whether any change in
circumstances occurred. As such, Aetna did not conduct a thorough investigation
into the events preceding the injury. Aetna failed to investigate the depth of the
water at low tide, the depth of the water at high tide and the tidal conditions at the
time of the accident.10 Aetna made no attempt to locate other guests who might
10
Capone, who stands 6'1" tall, testified in his deposition that after his first dive his feet
could barely touch the sand, forcing him to walk on his tip toes as he made his way back to the
dock.
19
have been on scene, which could have been done through hotel records. Capone
showed that Aetna’s estimate of the dock’s height was clearly erroneous, yet the
record does not reflect any additional action taken by Aetna to review their
decision. Certainly an injury of this magnitude demands a full and complete
investigation.
Capone is precluded from bringing a breach of fiduciary duty claim in
conjunction with a wrongful denial of benefits claim. Katz v. Comprehensive Plan
of Group Ins., 197 F.3d 1084, 1088 (11th Cir. 1999). However, Aetna’s
responsibilities as a fiduciary illustrates the proper standard of investigation. 29
U.S.C. § 1104(a)(1), mandates that a fiduciary shall “discharge his duties with
respect to a plan solely in the interest of the participants and beneficiaries and . . .
(B) with the care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and familiar with such
matters would use . . . .” Consequently, Aetna had the responsibility to fully
investigate Capone’s claims before denying benefits. Aetna failed to adequately
address the issues raised in Capone’s appeal and the denial of benefits without a
proper investigation was de novo wrong.
C. A LCOHOL E XCLUSION
Aetna cites the policy’s alcohol exclusion as an independent ground for
20
denial of Capone’s claim. The policy provides, in relevant part:
No benefits are payable for a loss caused or contributed
to by:
...
Use of alcohol, intoxicants, or drugs, except as prescribed
by a physician.
An accident in which the blood alcohol level of the
operator of a motor vehicle meets or exceeds the level at
which intoxication would be presumed under the law of
the State where the accident occurred shall be deemed to
be caused by the use of alcohol.
(emphasis added). Aetna relied on the toxicology tests over the contradictory
affidavit of Kevin Zeh and the statements of Capone himself. They also relied on
the accuracy of the screening equipment as Capone presented no evidence beyond
the unsubstantiated assertion of improper calibration. Aetna is entitled to value the
medical evidence over the affidavits of Zeh and Capone. See Brown v. Blue Cross
and Blue Shield of Ala., Inc. 898 F.2d 1556, 1572 (11th Cir. 1990) overruled on
other grounds by Doyle v. Liberty Life Assurance Co. of Boston, 542 F.3d 1352
(11th Cir. 2008)).
While we agree that it is reasonable to draw the conclusion that Capone was
under the influence of alcohol, it is unreasonable to conclude that his intoxication
caused his injury. Unlike the motor vehicle provision, there is no mandate in the
policy that legal intoxication shall be deemed the cause of the accident. The plain
21
language of the provision is clear that the presence of alcohol does not warrant the
presumption of causation outside of the motor vehicle context. Without this
presumption, causation is a fact specific inquiry.
Capone has the burden of proving a prima facie case of entitlement to
contractual benefits under the policy. See Con’t Assurance Co. v. Rothell, 181
S.E.2d 283, 285 (Ga. 1971). We hold that Capone has met this burden. Capone
established that several other individuals were diving from the dock in a
contemporaneous fashion. Capone claims they dove irrespective of their
consumption of alcohol, and Aetna offers no evidence to refute this claim.
The burden then shifts to Aetna to prove that Capone is not entitled to
benefits. See id. As a fiduciary, Aetna is required to make a reasoned
determination after a diligent investigation. Aetna did not conduct a
reasonable investigation sufficient to show that Capone is not entitled to benefits.
There was no investigation regarding the series of events leading up to the dive or
the intoxication level of the other divers. There may have been some who had
consumed no alcohol, yet still chose to dive. Again, this investigation could have
been conducted by contacting other guests engaged in this same activity.
Aetna claims that because Capone was intoxicated, his judgment was
necessarily impaired. Aetna reasons that since the decision to dive required a
22
degree of judgment, alcohol necessarily caused or contributed to his injury. This
assertion, without more, cannot meet Aetna’s burden of proving the exclusion
applies.
There is simply not enough in the record to sufficiently connect Capone’s
decision to dive with his state of intoxication. As such, Aetna has not presented
sufficient evidence that suggests that the consumption of alcohol caused or
contributed to the accident and resulting injury. Thus, the denial of benefits based
upon the alcohol exclusion without more was de novo wrong.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is,
REVERSED and the cause REMANDED for further consideration.
23