Prelutsky v. Greater Georgia Life Insurance Company
Filing
25
OPINION AND ORDER granting Defendant Greater Georgia Life Insurance Companys Motion for Leave to File Corrected Memorandum of Law in Support of Defendants Motion for Judgment on the Administrative Record 17 . Defendants Motion for Judgment on the Administrative Record 12 is denied. Plaintiff Steven D. Prelustkys Motion for Summary Judgment 16 is granted. Defendants denial of Plaintiffs claim for benefits under the Plan is REVERSED. Signed by Judge William S. Duffey, Jr on 8/8/16. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
STEVEN D. PRELUTSKY,
Plaintiff,
v.
1:15-cv-628-WSD
GREATER GEORGIA LIFE
INSURANCE COMPANY,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant Greater Georgia Life Insurance
Company’s (“Defendant”) Motion for Judgment on the Administrative Record [12]
(“Defendant’s Motion”). Also before the Court is Plaintiff Steven D. Prelustky’s
(“Plaintiff”) Motion for Summary Judgment [16] (“Plaintiff’s Motion”).
I.
BACKGROUND
Plaintiff brings this action seeking review, under the Employee Retirement
Income Security Act of 1974 (“ERISA”), of Defendant’s denial of long term
disability (“LTD”) benefits. Plaintiff, a 55 year-old man, was a partner with the
law firm Hall, Booth, Smith PC (“Hall”). (Admin. R. [15] (“R.”) 006, 030, 038).
On March 10, 2014, while on a ski vacation in Aspen, Colorado, Plaintiff fell
down a flight of stairs in a home where he was staying. (See R. 007). The fall
resulted in a traumatic brain injury requiring several brain surgeries and ultimately
caused lasting brain damage, which prevented Plaintiff from returning to his
employment at Hall. (R. 105-107, 111-12). Hall’s long-term disability benefits
plan (the “Plan”) excludes disabilities caused by, resulting from, or relating to
intoxication (the “Intoxication Exclusion”). The crux of the parties’ disagreement
is whether the record shows Plaintiff’s fall was caused by, resulted from, or related
to his purported intoxication, and thus whether the Plan’s Intoxication Exclusion
precludes LTD benefits.
A.
The LTD Plan
Plaintiff was a participant in Hall’s LTD Plan. (R. 038). The Plan was
provided through a group insurance policy insured by Defendant. (R. 499-511).
The Plan’s Intoxication Exclusion provides:
The Policy does not cover any disabilities or loss caused by, resulting
from, or related to any of the following . . .
7.
Any accident, Injury or Illness caused by, resulting from, or
related to Your being under the voluntary influence of any drug,
narcotic, intoxicant or chemical, unless administered by or taken
according to the advice of a Physician.
(R. 620).
Defendant is the Plan Administrator. The Plan provides that Defendant
“will make the final decision on claims for benefits under the Policy. When
2
making a benefit determination, [Defendant] will have discretionary authority to
interpret the terms and provisions of the Policy.” (R. 623).
B.
Plaintiff’s Injury and Treatment
On March 10, 2014, Plaintiff fell down approximately twenty (20) stairs in a
home where he was staying in Aspen, Colorado. There were no witnesses to his
fall. Plaintiff was found after the fall by his son. The amount of time between
Plaintiff’s fall and when his son found him is not known. (R. 200, 397). When
emergency medical services arrived, Plaintiff did not have a pulse, and CPR was
performed. (R. 209, 397). Plaintiff arrived at Aspen Valley Hospital at 9:33 p.m.,
and was intubated and diagnosed with bilateral subdural hematomas associated
with a midline shift and skull fracture. (R. 57, 397).
At 9:51 p.m., a blood alcohol test was performed. The test indicated
Plaintiff’s blood alcohol level was 281 mg/dL. (R. 065). The test records state:
“These unconfirmed ‘screening’ results are to be used for medical purposes only.
They are not intended for non-medical purposes (e.g. employment and/or legal
testing).” (R. 065). On March 11, 2014, Plaintiff was transferred to St. Mary’s
Hospital in Grand Junction, Colorado, where a craniectomy was performed. (R.
195, 209).
3
On April 2, 2014, Plaintiff was transferred to the Shepherd Center, a
long-term rehabilitation facility in Atlanta, Georgia. (R. 210). Nine months after
his injury, Shepherd Center records indicate Plaintiff had improved, but he was
still unable to return to work due to continuing high-level cognitive deficits and
word-finding problems. (R. 106, 385). As of December 23, 2014, Plaintiff was
continuing to be monitored as an outpatient at the Shepherd Center. (R. 106).
C.
Administrative Process
On June 2, 2014, Plaintiff applied to Defendant for LTD benefits. (R.
006-007). At the time he applied, his symptoms included deficits in short term and
long term memory, difficulty with processing information, moderate to severe
aphasia and a lack of awareness of limitations. (R. 030). He suffered from
problems with word retrieval and other social skills. (R. 030). His reasoning was
affected and he lacked the ability to make decisions. (R. 030). He had to re-learn
walking, and he was unable to drive. (R. 030, 032).
On June 25, 2014, Defendant issued Plaintiff a letter requesting a completed
Attending Physician Statement, medical records from the date of the injury to the
present, and a completed Activities of Daily Living Questionnaire. (R. 029).
On July 2, 2014, Defendant received Plaintiff’s medical records from the
Shepherd Center. A physical therapy discharge note by attending physician Payal
4
M. Fadia, M.D. stated: “[a]lcohol abuse reported with a blood alcohol level of
0.25 at the time of his fall.” (R. 048).
On July 29, 2014, Defendant denied LTD benefits, citing the Intoxication
Exclusion and the blood test performed at Aspen Valley Hospital. The letter
denying benefits stated:
The hospital records indicate that you sustained a traumatic brain
injury after falling down a flight of stairs. Also noted in the records
was that your blood alcohol level was 0.25 when tested at the hospital.
For alcohol levels between 0.20 and 0.29, the following symptoms
were documented by Alcohol’s Effects from Virginia Tech and
Federal Aviation Regulation (CFR) 91.17: Alcohol and Flying.
Severe motor
impairment
Loss of consciousness
Memory blackout
Stupor
Loss of understanding
Impaired sensations
Possibility of falling
unconscious
(R. 117-18).
On July 31, 2014, Defendant received Plaintiff’s medical records from
Aspen Valley Hospital. (R. 055). The records included the blood alcohol test
performed at 9:51 p.m. showing Plaintiff’s blood alcohol level was 281 mg/dL.
(R. 065). The records also contained a March 10, 2014, report by consulting
surgeon William Rodman, M.D., which included a diagnosis of “Intoxication
(blood alcohol 253). (R. 072).
5
On December 8, 2014, Plaintiff appealed the denial of LTD benefits, arguing
Defendant failed to properly investigate his claim, and thus did not meet its burden
of proof to show the Intoxication Exclusion bars LTD benefits. (R. 126-27). In
support of his appeal, Plaintiff produced an affidavit from Cynthia Cameron, the
owner of the Aspen home. Ms. Cameron stated that, prior to the fall, Plaintiff did
not appear drunk. (R. 153-54). She stated it was her belief Plaintiff tripped over
his ski pants, since he had removed his boots prior to the fall, but did not remove
the long ski pants designed to cover his ski boots. (R. 153-54). Ms. Cameron did
not personally witness Plaintiff’s fall. (See R. 153-54). Plaintiff also argued the
Plan was internally inconsistent, because it provided for mental health benefits due
to alcoholism, while excluding disabilities caused by alcohol. (R. 127).
In support of his appeal, Plaintiff also included his medical records from the
Shepherd Center, Aspen Valley Hospital, and St. Mary’s Hospital. The
Emergency Department notes from St. Mary’s Hospital, dated March 11, 2014—
the day after the fall—state under the heading “Final Impression”:
1.
2.
3.
4.
Traumatic subdural hematoma
Skull fracture
Alcohol intoxication
Fall down stairs
(R. 203). The consultation notes by David S. James, M.D. from that same day
include, under the heading “Impression,” the statement “Acute alcohol
6
intoxication,” and, under the heading “Plan,” “CIWA[1] protocol for alcohol
intoxication.” (R. 237). A document titled History and Physical Notes completed
by Nurse Practitioner Tammy J. Chambers states: “Patient status is Inpatient 53
year old attorney skiing in Aspen on family vacation. Had drank heavily this
evening; fall 20 carpeted steps with immediate LOC. His son and family friends
are present in ER.” (R. 207).
The medical records from the Shepherd Center include an April 3, 2014,
dictation report by attending physician Dr. Bowman. The report stated under the
heading “Admitting Diagnoses,” “[a]lcohol abuse (binge drinking) with a blood
alcohol of 0.250 at the time of his fall.” (R. 144). A May 15, 2014, report by Dr.
Bowman stated under “Relevant History,” “Psychiatric history is notable for binge
drinking; he was intoxicated at the time of his fall. His wife denied the patient
used tobacco or illicit substances. He has never received formal substance abuse
treatment.” (R. 148).
In conducting its review of Plaintiff’s appeal, Defendant forwarded his
medical records to an independent physician, Richard E. Sall, M.D. Based on his
review of the medical records, Dr. Sall opined:
1
Clinical Institute Withdrawal Assessment for Alcohol.
7
The claimant had a reported blood alcohol concentration of .281% on
a specimen draw in the emergency room at Aspen Hospital.
At 0.25% BAC, the individual needs assistance in walking, and
experiences total mental confusion . . . .
Considering all the facts and circumstances in this case, it is my
medical opinion that the claimant was intoxicated at the time of
admission to the hospital.
(R. 389). Dr. Sall opined that, in his medical opinion, Plaintiff’s blood alcohol
level “contributed to his fall.” (R. 390). He concluded that, “[c]onsidering all the
facts and circumstances in this case, it is my medical opinion that the claimant was
intoxicated at the time of admission to the hospital and the level of intoxication
most probably contributed to the cause for falling down the steps.” (R. 391).
On January 23, 2015, Defendant sent a letter to Plaintiff’s attorney
upholding its denial of Plaintiff’s claim for LTD benefits. (R. 406-411). In
upholding its denial of benefits, Defendant relied on its “review of the claim
information, the independent medical review findings, and the plan language,” to
find that Plaintiff’s “disability was due to an accidental injury resulting from being
under the influence of an intoxicant.” (R. 410).2
2
A separate evaluation of the medical records was performed by Nick
DeFilippis, PhD. Dr. DeFilippis determined that, given Plaintiff’s continuing
problems, he would not be able to function in his role as an attorney. (R. 383-88,
386). Defendant acknowledges that Plaintiff’s ability to function in his role as an
8
D.
Procedural History
On March 3, 2015, Plaintiff filed his Complaint [1]. In it, he seeks review,
under the ERISA, of Defendant’s denial of LTD benefits. Plaintiff also seeks
attorneys’ fees.
On September 28, 2015, Defendant filed its Motion.3 In it, Defendant
argues that the Administrative Record shows that Plaintiff’s injury was, at the very
least, related to his being under the voluntary influence of alcohol at the time of his
accident. ([17.1] at 14). It argues that, even if the Court finds Defendant’s
decision to deny benefits was “wrong,” Defendant’s denial of LTD benefits was
based on reasonable grounds under the deferential arbitrary and capricious
standard. (Id. at 24). Defendant also argues its decision was not “clouded by a
conflict of interest.” (Id. at 25-27). Defendant seeks judgment on the
administrative record and dismissal of this action with prejudice. (Id. at 27).
attorney at the time of his claim denial—and thus his disability at that time—is not
at issue in this action. ([12.1] at 8 n.3).
3
On October 13, 2015, Defendant filed its Motion for Leave to File Corrected
Memorandum of Law in Support of Defendant’s Motion for Judgment on the
Administrative Record [17] (“Motion for Leave”). In it, Defendant corrects an
error in its original memorandum of law. Plaintiff did not oppose Defendant’s
Motion. The Court grants Defendant’s Motion for Leave, and considers
Defendant’s Corrected Memorandum of Law.
9
On September 28, 2015, Plaintiff filed his Motion. In it, Plaintiff argues
Defendant did not meet its burden to show Plaintiff’s accident was caused by,
resulted from, or was related to his being under the influence of any intoxicant. He
argues that “the only evidence that [Defendant] has is the blood alcohol test,” and
argues that the “mere presence of alcohol in [Plaintiff]’s blood is not enough for
the [Intoxication E]xclusion to apply.” ([16.1] at 7). Plaintiff seeks summary
judgment in his favor and an award of LTD benefits. (Id. at 12).
II.
DISCUSSION
A.
ERISA Standard
As an initial matter, the parties disagree whether a motion for judgment on
the administrative record or a motion for summary judgment is the appropriate
vehicle to seek the Court’s review. The parties also disagree as to the appropriate
standard of review. Plaintiff argues Defendant’s Motion is subject to the
requirements of Rule 52 of the Federal Rule of Civil Procedure, and Defendant
argues Plaintiff’s Rule 56(a) summary judgment motion seeks review under a
standard that does not apply in ERISA actions.
The “standard of review [in the ERISA context] does not neatly fit under
either Rule 52 or Rule 56, but is a specially fashioned rule designed to carry out
Congress’s intent under ERISA.” Wilkins v. Baptist Healthcare Sys., Inc.,
10
150 F.3d 609, 618 (6th Cir. 1998). ERISA benefits denial cases place the district
court as more of “an appellate tribunal than as a trial court.” See
Curran v. Kemper Nat. Servs., Inc., No. 04-14097, 2005 WL 894840, at * 7 (11th
Cir. 2005) (quoting Leahy v. Raytheon Co., 315 F.3d 11, 17-18 (1st Cir. 2002)).
The court “does not take evidence, but, rather, evaluates the reasonableness of an
administrative determination in light of the record compiled before the plan
fiduciary.” Id.; see also Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1354
(11th Cir. 2011) (review of a plan administrator’s denial of benefits is limited to
consideration of the material available to the administrator at the time it made its
decision). Thus, there “may indeed be unresolved factual issues evident in the
administrative record, but unless the administrator’s decision was wrong, or
arbitrary and capricious, these issues will not preclude summary judgment as they
normally would.” Pinto v. Aetna Life Ins. Co., No. 09-01893, 2011 WL 536443,
at *8 (M.D. Fla. Feb. 15, 2011).
As the First Circuit recently explained, “motions for summary judgment in
[the ERISA] context are nothing more than vehicles for teeing up ERISA cases for
decision on the administrative record.” Stephanie C. v. Blue Cross Blue Shield of
Mass. HMO Blue, Inc., 813 F.3d 420, 425 n.2 (1st Cir. 2016); see also
Turner v. Am. Airlines, Inc., No. 10-80623, 2011 WL 1542078, at *4 (S.D. Fla.
11
Apr. 21, 2011) (“[W]here . . . the decision to grant or deny benefits is reviewed for
abuse of discretion, a motion for summary judgment is merely the conduit to bring
the legal question before the district court and the usual tests of summary
judgment, such as whether a genuine dispute of material fact exists, do not apply.”
(internal quotation marks omitted)). This is a sound, common-sense description of
the district courts’ appellate-like function in evaluating administrative decisions in
ERISA cases. It is consistent with the Eleventh Circuit’s review of district court
cases reviewing the denial of ERISA benefits. Accordingly, the Court conducts its
review of the administrative record, taking into account the arguments presented
by the parties in their respective motions. See, e.g., Al-Abbas v. Metropolitan Life
Ins. Co., 52 F. Supp. 3d 288, 294-96 (D. Mass. 2014) (on review of denial of
ERISA benefits, where defendant moved for judgment on administrative record
and plaintiff cross-moved for summary judgment, court considered the record in
light of the parties’ briefing to determine whether administrator’s decision was
reasonable).
12
Turning to the framework for district courts to use to review an ERISA plan
administrator’s decision, the Eleventh Circuit has provided the following six-step
analytical process (the “Williams analysis” 4):
(1) Apply the de novo standard to determine whether the claim
administrator’s benefits-denial decision is “wrong”; if it is not, then
end the inquiry and affirm the decision.
(2) If the administrator’s decision is in fact “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, the conflict should merely be a factor for the
court to take into account when determining whether an
administrator’s decision was arbitrary and capricious.
Smith v. Pension Comm. of Johnson & Johnson, 470 F. App’x 864, 866-67 (11th
Cir. 2012) (citing Blankenship, 644 F.3d at 1355).
4
Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132 (11th Cir. 2004).
13
Under the first step, a decision is “wrong” if “the court disagrees with the
administrator’s decision.” Williams v. BellSouth Telecomm., Inc., 373 F.3d 1132,
1138 n. 8 (11th Cir. 2004) (overruled on other grounds). The Court applies the
terms of the plan to determine whether the administrator was “wrong” in denying
benefits to the claimant. Brannon v. BellSouth Telecomm., Inc., 318 F. App’x
767, 769 (11th Cir. 2009).
At step three, when conducting a review of an ERISA benefits denial under
the arbitrary and capricious standard, the function of the court is to determine
whether there was a reasonable basis for the decision, based upon the facts as
known to the administrator at the time the decision was made. Jett v. Blue Cross &
Blue Shield of Ala., 890 F.2d 1137, 1139 (11th Cir. 1989). Even if the benefit
determination is de novo wrong, the role of the court is limited to an inquiry into
whether there were “reasonable” grounds to support it. Williams, 373 F.3d at
1138. The Court thus limits its review to whether the plan administrator’s benefits
determination “was made rationally and in good faith—not whether it was right.”
Griffis v. Delta Family-Care Disability, 723 F.2d 822, 825 (11th Cir. 1984). “The
reviewing court will affirm merely if the administrator’s decision is reasonable
given the available evidence, even though the reviewing court might not have
made the same decision if it had been the original decision-maker.” Burden
14
v. Reliastar Life Ins. Co., No. 1:12-CV-04392-WSD, 2014 WL 26090, at *5 (N.D.
Ga. Jan. 2, 2014) (alterations omitted) (quoting Callough v. E.I. du Pont de
Nemours & Co., 941 F. Supp. 1223, 1228 n.3 (N.D. Ga. 1996)).
A “reviewing court must take into account an administrative conflict when
determining whether an administrator’s decision was arbitrary and capricious, [but]
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.” Doyle
v. Liberty Life Assur. Co. of Boston, 542 F.3d 1352, 1360 (11th Cir. 2008).
B.
Burden of Proof
“A plaintiff suing under [ERISA] bears the burden of proving his entitlement
to contractual benefits. But, if the insurer claims that a specific policy exclusion
applies to deny the insured benefits, the insurer generally must prove the exclusion
prevents coverage.” Horton v. Reliance Std. Life Ins. Co., 141 F.3d 1038, 1040
(11th Cir. 1998).
C.
Analysis
1.
Review of Defendant’s Decision to Deny Benefits
The Court first conducts its de novo review to determine whether
Defendant’s decision to deny benefits was wrong. Defendant concedes that
Plaintiff was, during the time period covered by the Administrative Record,
15
disabled under the Plan. Defendant acknowledges that whether Plaintiff is
currently disabled is not at issue in this case. (See [12.1] at 8 n.3; [20] ¶ 11).
Defendant’s position is that the Intoxication Exclusion precludes the payment of
LTD benefits to Plaintiff because the injury Plaintiff suffered is excluded by the
Intoxication Exclusion. Defendant has the burden to show the Intoxication
Exclusion prevents coverage. Reliance Std., 141 F.3d at 1040.
The Intoxication Exclusion provides:
The Policy does not cover any disabilities or loss caused by, resulting
from, or related to any of the following . . .
7.
Any accident, Injury or Illness caused by, resulting from, or
related to Your being under the voluntary influence of any drug,
narcotic, intoxicant or chemical, unless administered by or taken
according to the advice of a Physician.
(R. 620).
The parties agree the question here centers on whether Plaintiff was under
the voluntary influence of an intoxicant, in this case alcohol, when he was injured
initially. The Court reviews the facts in the Administrative Record on this
intoxication issue.
At 9:51 p.m. on the night of the accident, a blood alcohol test was performed
at Aspen Valley Hospital. The test indicated Plaintiff’s blood alcohol level was
281 mg/dL. (R. 065). While the test records state “[t]hese unconfirmed
16
‘screening’ results are to be used for medical purposes only” and “[t]hey are not
intended for non-medical purposes (e.g. employment and/or legal testing),” (R.
065), that Plaintiff was intoxicated during his accident is supported by other
evidence of record. A report titled “History and Physical Notes” completed by
Nurse Practitioner Tammy J. Chambers at 1:36 a.m. the night of the accident
records the following patient history and facts: “Patient status is Inpatient 53 year
old attorney skiing in Aspen on family vacation. Had drank heavily this evening;
fall 20 carpeted steps with immediate LOC. His son and family friends are present
in ER.” (R. 207). While Plaintiff argues that Nurse Practitioner Chambers’s notes
are unclear whether Plaintiff’s son and friends stated to her that Plaintiff had been
drinking heavily, Plaintiff admits “it is likely that they may have.” ([18.1] at 4).
Indeed, because Plaintiff was unresponsive at the time of the report and was unable
to communicate with Nurse Practitioner Chambers, the reasonable inference is that
Plaintiff’s son and friends told Nurse Practitioner Chambers that Plaintiff was an
attorney, that he was on a ski vacation, and that he had been drinking heavily.5
The phrase “drinking heavily” is the kind of colloquial statement a friend or family
5
It is possible that Plaintiff’s friends and son told Nurse Practitioner
Chambers that Plaintiff was an attorney on a ski vacation, while she deduced
herself, based on the blood alcohol test, that Plaintiff had been drinking heavily
that night.
17
member would use, and it is the kind of history a health care professional would
record in a patient record. Though Ms. Cameron’s affidavit states a personal
opinion that Plaintiff did not appear intoxicated and a speculative conclusion that
Plaintiff “probably slipped on his ski pants,” (R. 153-54), it is reasonable to place
more weight on the medical evidence and Nurse Practitioner Chambers’s history
and fact entry than on Ms. Cameron’s affidavit, especially her unconfirmed
speculation about the cause of the accident. See Capone v. Aetna Life Ins. Co.,
592 F.3d 1189, 1200 (11th Cir. 2010) (“Aetna is entitled to value the medical
evidence over the affidavits of Zeh and Capone.”). The Court finds the evidence
supports that Plaintiff was intoxicated at the time of his fall.
The Court next considers the Administrative Record to evaluate if the injury
Plaintiff sustained in Aspen was caused by, resulted from, or was related to his
being intoxicated. In Capone, the plaintiff struck his head on the bottom of the
ocean after diving off a dock in the Bahamas, resulting in the plaintiff’s paralysis
from the neck down. Id. at 1192. A blood serum test revealed the plaintiff’s blood
alcohol content was 0.244. Id. at 1192-93. Based on this test, Aetna denied his
claim for benefits, citing the plan’s alcohol exclusion, which provided:
18
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.
Id. at 1200. The plaintiff in Capone argued Aetna failed to adequately establish
that alcohol contributed to his injury. He supported his argument with an
eyewitness affidavit signed by his coworker and friend, Kevin Zeh, who attested
that both he and the plaintiff successfully dove from the dock prior to the accident,
and that other guests were jumping and diving as well. Zeh stated he did not see
the plaintiff “acting inappropriately” or having “red eyes, slurred speech, or
difficulty walking,” immediately preceding the accident. Id. at 1194. Aetna, in
response, relied on a learned medical treatise, which stated that someone with a
blood alcohol content of .20 to .30 would exhibit the following behavior:
“staggering, grossly impaired, drunk; may be lethargic and sleepy or hostile and
aggressive.” Id. The district court granted summary judgment in favor of Aetna,
finding, at the first step of the Williams analysis, that Aetna’s decision was not de
novo wrong.
19
On appeal, the Eleventh Circuit reversed, finding that, where “there is no
mandate in the policy that legal intoxication shall be deemed the cause of the
accident,” it is unreasonable to draw the inference—from toxicology tests alone—
that intoxication caused or contributed to an injury. See id. at 1200. The Capone
court, noting that the insurer has the burden to prove an intoxication exclusion
applies, found that the insurer did not “conduct a reasonable investigation
sufficient to show that Capone was 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.” Id. The court rejected Aetna’s claims that,
because the plaintiff was intoxicated, “his judgment was necessarily impaired.” Id.
Here, the evidence supporting an inference of causation consists of: (1) the
blood alcohol test, (2) Dr. Sall’s independent professional opinion that “[a]t 0.25%
BAC, the individual needs assistance in walking, and experiences total mental
confusion . . . .” and (3) Dr. Sall’s opinion, based on his review of the medical
evidence, that “the level of intoxication most probably contributed to the cause for
falling down the steps.” (R. 391). Plaintiff argues that, “[l]ike the insurer in
Capone, [Defendant] merely relied on the blood test and supposition from the
blood alcohol content level. The Eleventh Circuit held that this level of
investigation was inadequate to meet the burden of proof. Since Capone is direct
20
precedent, this Court should reach the same result.” ([18.1] at 10). The Court
agrees. The blood test and a list of physical symptoms expected at a certain blood
alcohol level are the type of evidence the Eleventh Circuit concluded was required
to be supplemented by a further investigation by the insurer to determine if the
plaintiff’s intoxication resulted in a degradation of his physical and cognitive
abilities such that the causal link can reasonably be drawn between the injury and
intoxication. The Court concludes that Defendant failed to conduct a sufficient
investigation that would allow the administrator to reasonably find a causal link
between Plaintiff’s alcohol consumption and his fall.6, 7
6
Defendant argues that, unlike in Capone, Defendant engaged a reviewing
physician, Dr. Sall, to independently analyze whether Plaintiff’s injury related to
his intoxication. ([12.1] at 20). Dr. Sall’s conclusions, however, were based on his
analysis of the blood alcohol test in the context of learned medical treatises opining
that certain physical symptoms are present at a 0.25% level. This underlying
evidentiary support is the kind that was found insufficient by the Eleventh Circuit.
The Court is not persuaded that a medical expert, relying on the same type of
evidence deemed insufficient by our Circuit, renders, by virtue of his medical
expertise, that evidence sufficient.
7
Defendant also argues that, because there were no witnesses to Plaintiff’s
injury, “there was no one [Defendant] could have interviewed who could have
provided information identifying the cause of the fall.” ([12.1] at 21). It concludes
its investigation was, under the circumstances of this case, reasonable. (Id.). The
Court disagrees. That Plaintiff’s “son and family friends” likely indicated he had
“drank heavily this evening,” (Id. at 22 (quoting R. 207)), supports that these
individuals could have provided information regarding Plaintiff’s physical and
mental state immediately preceding the fall. Such evidence would be highly
relevant to the causation inquiry, as would be the volume of alcohol consumed, the
21
Defendant seeks to distinguish Capone by arguing that the exclusion in
Capone provided that “[n]o benefits are payable for a loss caused or contributed to
by . . . [u]se of alcohol, intoxicants, or drugs, except as prescribed by a
physician[,]” Capone 592 F.3d at 1200 (emphasis added), whereas the exclusion in
the Plan is broader, excluding disabilities “caused by, resulting from, or related to
Your being under the voluntary influence of any . . . intoxicant [,]” (R. 620
(emphasis added)). ([12.1] at 20). Defendant argues that “the standard
[Defendant] must meet to prove that the alcohol exclusion applies is less stringent
than the one at issue in Capone.” (Id.). Defendant suggests that it is not required
to show a causal link between Plaintiff’s intoxication and his injury. The Court
disagrees. While only “minimal” causation is required by the Plan’s language, see
Horton v. Life Ins. Co. of N. Am., No. CIV.A. ELH-14-3, 2015 WL 1469196, at
*18 (D. Md. Mar. 30, 2015), Defendant still is required to develop sufficient facts
to show some causal link between Plaintiff’s intoxication and his injury, in order to
show the injury was “related to” the intoxication.
type of alcohol consumed and the time period over which it was consumed,
whether Plaintiff was tired as a result of any physical activity he had undertaken
that day, and whether he was wearing attire that might cause a fall—just to name
some of the facts that logically could be investigated to evaluate the relationship
between the intoxication and the fall.
22
In Hastie v. J.C. Penney Life Ins. Co., 115 F.3d 895 (11th Cir. 1997), the
insured died after his vehicle collided with a vehicle that had crossed into the
insured’s lane. Id. at 896. An autopsy revealed the insured’s blood alcohol level
was 0.254%. Id. “The death certificate listed ‘multiple blunt traumatic injuries’ as
the immediate cause of death, ‘motorcycle-motor vehicle accident’ as the
‘underlying cause’ of death and ‘acute alcohol intoxication’ as a ‘significant
condition contributing to death but not resulting in the underlying cause.’” Id.
Based on an intoxication exclusion, the insurance company denied an application
for accidental death benefits. The exclusion provided that “[n]o benefit shall be
paid for any loss . . . which is caused by or results from . . . an injury occurring
while the Covered Person is intoxicated.” Id. The insurer argued that, because the
insured was intoxicated at the time of the accident, the exclusion precluded
recovery of benefits. Id. at 897. The Eleventh Circuit rejected this argument,
reversed the district court’s entry of summary judgment in favor of the defendant,
and remanded. Id. In rejecting the insurer’s application of the exclusion, the court
reasoned that “[t]he interpretation urged by [the insurer] . . . would even deny
liability for the accidental death in an automobile collision of a person being
transported in an ambulance simply on the ground that the victim of the accident
was under sedation at that time. Language in contracts, drawn by reasonable men,
23
should not be given an unreasonable construction.” Id. The Hastie court
concluded that some proof of a causal connection between the insured’s
intoxication and his death was required. Id. at 896-97.8
Here, under language broader than that considered in Hastie, Defendant is
required to present some evidence of causation.9 See id., see also Horton, 2015
WL 1469196, at *18 (“The text of the Policies does not provide that an insured is
automatically excluded from benefits solely on the basis of blood alcohol content.
To the contrary, under the language of the Policies there must be some evidence of
the role of alcohol in the loss, beyond the insured’s intoxicated state, to establish
8
While the Hastie court construed the exclusion under Florida law, the same
reasoning applies here. Issues related to ERISA contracts are governed by federal
common law. See Buce v. Allianz Life Ins. Co., 247 F.3d 1133, 1142 (11th Cir.
2001) (“[W]hen a federal court construes an ERISA-regulated benefits plan, the
federal common law of ERISA supersedes state law.”); Epolito v. Prudential Ins.
Co. of Am., 523 F. Supp. 2d 1329, 1333 (M.D. Fla. 2007) (“Because ERISA does
not contain a body of contract law to govern the interpretation and enforcement of
employee benefit plans, disputes over benefits are governed by federal common
law on the many matters not addressed by the statute.”). Other federal courts have
required some evidence of causation under various types of intoxication
exclusions. See Horton, 2015 WL 1469196, at *20 (citing cases).
9
To the extent the term “related to” is ambiguous as to whether some
evidence of causation is required, the doctrine of contra proferentem applies
during the first step of the ERISA Review Framework. See White v. Coca-Cola
Co., 542 F.3d 848, 857 (11th Cir. 2008). This doctrine provides that ambiguities in
insurance contracts are resolved against the insurer. Castleberry v. Goldome Cred.
Corp., 418 F.3d 1267, 1271 (11th Cir. 2005). The Court notes, however, that, in
our Circuit, the doctrine does not apply beyond the first step of the Williams
analysis. See White, 542 F.3d at 857.
24
the applicability of the exclusion.”). To read the Plan as requiring otherwise would
be unreasonable.10 The Court finds the evidence in the Administrative Record
does not support that Plaintiff’s injury was caused by, resulted from, or was related
to his intoxication.
Other courts considering intoxication exclusions in the ERISA context have
similarly found that, “notwithstanding a minimal burden of proof and a deferential
standard of review, an insurer cannot merely rest upon blood alcohol level and a
generic list of alcohol’s effects to establish a causative link between intoxication
and loss.” Horton, 2015 WL 1469196, at *20. “This principle requiring an insurer
to meet its causation burden with evidence applies generally to various policy
exclusions.” Id. (examining intoxication exclusions in ERISA cases). In
Ciberay v. L-3 Commc’ns Corp. Master Life & Acc. Death & Dismemberment Ins.
Plans, No. 3:12-CV-1218-GPC-MDD, 2013 WL 2481539, at *1 (S.D. Cal.
10
That Defendant must provide evidence of causation is further supported by
the fact that “[n]o circuit court considering drunk driving crashes has approved a
claims administrator’s use of a per se rule in the context of ERISA accidental death
policies.” Firman v. Becon Constr. Co., 789 F. Supp. 2d 732, 745 (S.D. Tex.
2011), aff’d sub nom. Firman v. Life Ins. Co. of N. Am., 684 F.3d 533 (5th Cir.
2012) (declining to adopt a per se rule that all alcohol-related collisions are
non-accidental and therefore not covered under an insurance policy). “[T]he same
rationale cautioning against adoption of a per se rule based solely on blood alcohol
level is apt here.” Horton, 2015 WL 1469196, at *29.
25
June 10, 2013), the plaintiff’s husband died several days after “falling down a set
of stairs while intoxicated.” Id. at *1. After the fall, his blood alcohol level was
measured at 0.422%. Id. at *2. The medical examiner initially listed his cause of
death as “hypertensive cardiovascular disease, with the following other significant
conditions: alcohol abuse, pelvic fractures, obesity, and diabetes mellitus.” Id. at
*3. He listed the manner of death as an accident. Id. The medical examiner later
amended the medical report to reflect that the cause of death was “complications
following pelvic fractures, with the following other significant conditions:
hypertensive cardiovascular disease, alcohol abuse, obesity, and diabetes mellitus.”
Id. Other medical testing revealed “‘a large massive pulmonary embolism . . . .’”
Id.
The insurer denied the wife’s claim for accidental death benefits based on
the policy’s intoxication exclusion, which precluded benefits for “‘any loss caused
in whole or in part by, or resulting in whole or in part from the following . . . the
Insured Person being under the influence of drugs or intoxicants . . . .’” Id. at *1.
The insurer determined that, due to the 0.422% blood alcohol level, which can
cause “ataxia, tremors, disorientation, disturbed equilibrium and up to
unconsciousness, depressed respiration, and even death,” the loss was not covered
by the policy. Id. at *4 (internal quotation omitted). The plaintiff conceded that
26
her husband was intoxicated when he fell, but argued that he did not die due to
intoxication. Id.
The parties filed cross motions for summary judgment. The Ciberay court
applied the deferential arbitrary and capricious review standard, and awarded
summary judgment to the plaintiff. In reaching this conclusion, the court
emphasized the lack of evidence in the administrative record to establish causation,
noting:
The record lacks any clear indication that Mr. Ciberay exhibited any
of the purportedly typical effects associated with a blood alcohol level
of .422%, which, according to Defendant, include: ataxia, tremors,
disorientation, disturbed equilibrium, depressed respiration,
unconsciousness, and death. To the contrary, the record indicates Mr.
Ciberay was able to move all four extremities on command, was alert
and oriented, experienced pain on standing (implying he was able to
stand), was breathing normally, was conscious, and was alive.
Moreover, prior to his fall, Mr. Ciberay had been playing with his
grandson in an upstairs room. Thus, given the apparent contradiction
of its generic list of typical effects with Mr. Ciberay’s actual state at
the time of his fall, the Court finds it was unreasonable for Defendant
not to further investigate the cause of Mr. Ciberay’s fall.
Id. at *8 n. 2. The court continued:
Other than a generic list of the typical effects associated with a blood
alcohol level similar to that of Mr. Ciberay’s at the time of his fall—
which, importantly, appears to be entirely contradicted by Mr.
Ciberay’s activity before falling and by his disposition when
paramedics arrived as set forth in Footnote 2 above—one may only
speculate as to what actually caused Mr. Ciberay to fall. The fall may
have been, as Plaintiff posits, related to the type of footwear Mr.
Ciberay was wearing (if any), the type of flooring on the stairs, the
27
fact that Mr. Ciberay was carrying dishes, or any combination of these
and other factors. In short, Defendant relies on the fact that Mr.
Ciberay was intoxicated without sufficiently tying Mr. Ciberay’s
intoxication to his death.
Id. at *14.
Here, Defendant offers only a blood alcohol level test and a generic list of
the typical effects associated with a blood alcohol level similar to Plaintiff’s. The
record here also “lacks any clear indication that [Plaintiff] exhibited any of the
purportedly typical effects associated with a blood alcohol level of [0.25%].” Id. at
8 n.2. Plaintiff has presented at least some evidence to support an alternate,
plausible theory accounting for his fall. After a thorough review of the
Administrative Record and the relevant case law, the Court finds that “[m]ost cases
interpreting intoxication exclusions in insurance contracts have involved a more
distinct causal link between intoxication and [injury] than in the present case.”
Norvell v. Metro. Life Ins. Co., No. CV RDB-14-3662, 2015 WL 9311971, at *6
(D. Md. Dec. 23, 2015). “At the end of the day, the parties offer [only] theories
and speculation as to what actually occurred.” Horton, 2015 WL 1469196, at
*26.11
11
The Court finds persuasive the Horton court’s analysis of cases in which
courts have found sufficient evidence of causation. In Horton, the court conducted
an exhaustive review of federal courts’ treatments of causation with respect to
28
On its de novo review, the Court finds Defendant failed to meet its burden to
show Plaintiff’s injury was caused by, resulted from, or was related to his
intoxication. Accordingly, the Court finds Defendant’s benefits-denial decision
was “wrong” under the first step of the Williams analysis.
2.
Whether Reasonable Grounds Support Defendant’s Denial
Having found Defendant’s denial of LTD benefits was de novo wrong, the
Court proceeds to the next steps of the Williams analysis. The Plan provides that,
“[w]hen making a benefit determination, [Defendant] will have discretionary
intoxication exclusions. The majority of cases involve automobile accidents. The
Horton court concluded that, in those cases where courts found the insurer
provided sufficient evidence of causation, the “courts generally relied on direct
evidence of driver error to support causation or the absence of any evidence to
support an alternative theory of causation.” 2015 WL 1469196, at *25 (internal
citations omitted); see also Smith v. Liberty Life Ins. Co., 535 F.3d 308, 317 (5th
Cir. 2008) (noting that the insured’s vehicle veered off the road and collided into
two trees); Patrick v. Devon Health Servs., Inc., 828 F. Supp. 2d 781, 795-96 (E.D.
Pa. 2011) (“This is not a situation in which Defendants simply presumed causation
in light of the elevated BAC levels found in Plaintiff at the time of the accident.
The facts of this accident, coupled with the documentary evidence, including a
police report supported by eyewitnesses, EMS records, hospital records and the
report from Dr. Cohn, all supported the finding that driving while intoxicated
contributed to the happening of this accident. Furthermore, there is no evidence,
and Plaintiff has presented nothing, to suggest that something other than alcohol
caused or contributed to the accident’s occurrence.” (footnote omitted)). Here,
Defendant does not present any direct evidence that alcohol caused or contributed
to Plaintiff’s fall, and there is at least minimal evidence supporting a plausible
alternate theory of causation.
29
authority to interpret the terms and provisions of the Policy.” (R. 623). Because
the Plan vests Defendant with discretion in reviewing claims, step three of the
Williams analysis applies. Step three requires the Court to “determine whether
‘reasonable’ grounds supported [Defendant’s decision] (hence, review
[Defendant’s] decision under the more deferential arbitrary and capricious
standard).” Blankenship, 644 F.3d at 1355. This step requires the Court to
determine whether there was a reasonable basis for the decision, based upon the
facts as known to the administrator at the time the decision was made. Jett, 890
F.2d at 1139. A “reviewing court must take into account an administrative conflict
when determining whether an administrator’s decision was arbitrary and
capricious, [but] 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.” Doyle, 542 F.3d at 1360.
In Capone, the Eleventh Circuit reversed and remanded the district court’s
determination at step one of the Williams analysis. On remand, the district court
applied step three of the Williams analysis. Capone v. Aetna Life Ins. Co., No.
1:06-cv-3014-MHS (N.D. Ga. June 14, 2010) (ECF No. 101). In doing so, the
district court determined that, because the Eleventh Circuit found Aetna’s decision
30
to deny benefits was based on an insufficient investigation and facts insufficient to
show causation, Aetna’s decision was arbitrary and capricious. Id.
The Court finds that, because Defendant failed to perform an investigation
sufficient to support that Plaintiff’s disability was caused by, resulted from, or
related to his intoxication, Defendant’s decision to deny benefits was not supported
by reasonable grounds. In upholding its denial of benefits, Defendant relied on its
“review of the claim information, the independent medical review findings, and the
plan language,” to find that Plaintiff’s “disability was due to an accidental injury
resulting from being under the influence of an intoxicant.” (R. 410 (emphasis
added)). For the reasons stated above, the record here does not support a causal
link between Plaintiff’s injury and his intoxication, and the Court finds
Defendant’s denial of LTD benefits thus was not supported by reasonable grounds.
Accordingly, Plaintiff’s Motion is granted, and Defendant’s decision denying
Plaintiff’s LTD benefits is reversed.12, 13
12
Because Defendant makes benefits determinations and also is responsible for
paying benefits, a structural conflict of interest exists and step six must be
addressed. Blankenship, 644 F.3d at 1355. Defendant’s inherent structural
conflict of interest supports, but is not determinative of, the Court’s conclusion.
See Doyle, 542 F.3d at 1360; Blankenship, 644 F.3d at 1355-56 (“The presence of
a structural conflict of interest—an unremarkable fact in today’s marketplace—
constitutes no license, in itself, for a court to enforce its own preferred de novo
ruling about a benefits decision.”).
31
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Greater Georgia Life
Insurance Company’s Motion for Leave to File Corrected Memorandum of Law in
Support of Defendant’s Motion for Judgment on the Administrative Record [17] is
GRANTED.
IT IS FURTHER ORDERED that Defendant’s Motion for Judgment on
the Administrative Record [12] is DENIED.
IT IS FURTHER ORDERED that Plaintiff Steven D. Prelustky’s Motion
for Summary Judgment [16] is GRANTED. Defendant’s denial of Plaintiff’s
claim for benefits under the Plan is REVERSED.
13
The Court’s conclusion at step three also is supported by the decisions of
courts that, applying the deferential arbitrary and capricious review standard, have
awarded summary judgment to plaintiffs under similar facts. For instance, in
Ciberay, after finding that a “generic list of the typical effects associated with a
blood alcohol level similar to that of Mr. Ciberay’s at the time of his fall” was
“simply insufficient [] to reasonably conclude Mr. Ciberay’s intoxication caused
him to fall[,]” the court entered summary judgment in favor of plaintiff. Ciberay,
2013 WL 2481539, at *13-14.
32
SO ORDERED this 8th day of August, 2016.
33
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