Werbianskyj v. Zurich American Insurance Company
Filing
45
OPINION AND ORDER GRANTING 35 MOTION for Summary Judgment by Defendant Zurich American Insurance Company. Clerk DIRECTED to enter judgment in favor of Defendant Zurich American Insurance Company. Signed by Judge William C Lee on 8/1/16. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DIANA WERBIANSKYJ,
Plaintiff,
v.
ZURICH AMERICAN INSURANCE
COMPANY
Defendant.
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CAUSE NO: 3:15-CV-104
OPINION AND ORDER
After Plaintiff Diana Werbianskyj’s husband was electrocuted in a work-related accident,
Plaintiff sought accidental death benefits through two group plans provided by Defendant Zurich
American Insurance Company (“Zurich”).
Zurich denied the claims because results of a
toxicology report indicated that Plaintiff’s husband had THC in his blood stream at the time of his
death. Thereafter, Plaintiff filed the instant suit pursuant to 29 U.S.C. §1132(a)(1)(B) seeking a
determination that Zurich’s denial of benefits was “arbitrary and capricious.”
Presently before the Court is Zurich’s Motion for Summary Judgment filed on February
25, 2016. Plaintiff responded on March 28, 2016 to which the Zurich replied on April 11, 2016.
For the following reasons, the Motion for Summary Judgment will be GRANTED.
APPLICABLE STANDARD
Rule 56(a) authorizes the court to grant summary judgment when there is “no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The court is required to enter summary judgment “after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that party will bear the burden
1
of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986).
FACTUAL BACKGROUND
a. The Accident
Mark Werbianskyj, Plaintiff’s husband, worked as a maintenance man for Parker Hannifin
Corporation in Ligonier, Indiana until March 18, 2013 at 10:30 p.m. when he was electrocuted and
died on the job. Immediately prior to his electrocution, Mr. Werbianskyj had finished mounting a
replacement light fixture and had restored power to a nearby receptacle. Mr. Werbianskyj then
went up on a scissor lift to complete the installation of the fixture and was electrocuted. (DE 361).
After this accident, a detective and maintenance supervisor examined the wires Mr.
Werbianskyj was working with and discovered the wires were bare. A subsequent autopsy
conducted by the Noble County Coroner provided the following narrative:
56 yr old w male maintenance man @ Parker Hannifin. Installing lights up on
scissor lift. Fellow employees saw him on his back on scissor lift. Yelled @ him
– no response. Cut power, scissor lift lowered, CPR started by employees. Wiring
examined by detective & maintenance supervisor. Bare wires noted. 1st and 2nd
degree burns to both hands. (Thumb & index finger both hands) Pupils fixed and
dialated [sic] no respirations, no pulse. Body transported to Yeager Funeral for
transport to forensic center for autopsy. Wife notified via phone. Report from Gary
Cox, Detective. Exposed wires noted on housing of electrical fixtures. Photos
taken by Gary Cox.
(DE 36-3).
The autopsy report identified the anatomic findings as (1) electrical burns, both
thumbs and forefingers; (2) abrasions, dorsal hands and left shin; (3) pulmonary edema and
congestion; and (4) moderate to severe coronary atherosclerosis. (DE 36-4). The toxicology report
2
showed blood positive for THC, Quant 5.8 ng/mL, THC-COOH, Quant 33.9 ng/mL, and caffeine.
(Id.). The urine specimen showed positive for carboxy THC, Quant 598 ng/mL. The death
certificate issued for Mr. Werbianskyj’s death reported “electrocution” as the immediate cause of
death and characterized the manner of death as an “accident.” (DE 36-2).
b. The Insurance Policies
Zurich insured employees of Parker Hannifin Corporation under two group accident life
insurance policies (“the Policies”).1 Generally speaking, the Policies state that “if an Insured
suffers a loss of life as a result of a Covered Injury, We will pay the applicable” benefit. “Covered
Injury” is a defined term meaning “an injury directly caused by accidental means which is
independent of all other causes, results from a Covered Accident, occurs while the Covered Person
is insured under [these Policies], and results in a Covered Loss.” (DE 36-6, p. 7 and DE 36-7, p.
6). The Policies further define a “Covered Loss” as “a loss which meets the requisites of one or
more benefits or additional benefits, results from a Covered Injury, and for which benefits are
payable under [these Policies].” (Id.). An “Injury” is defined as a “bodily injury” and the Policies
define “Accident” as “a sudden, unexpected, specific, and abrupt event that occurs by chance at
an identifiable time and place during the Policy term.” 2
The Policies also contain general exclusions. Of relevance here is the Drug and Alcohol
exclusion which provides:
A loss will not be a Covered Loss if it is caused by, contributed to, or results from:
…
8.
being under the influence of any prescription drug, narcotic, or
hallucinogen, unless such prescription drug, narcotic, or hallucinogen was
prescribed by a physician and taken in accordance with the prescribed dosage…
(DE 36-6, p. 18; DE 36-7 p. 19).
1
The Policies bear the policy number GTU 3760714 and GTU 3760715.
2
“Covered Accident” is defined as “an Accident that results in a Covered Loss.”
3
c.
The Claim for Benefits
On May 30, 2013, Plaintiff submitted a claim for accidental death benefits to Zurich under
the terms of the Policies. (DE 36-8). Upon receipt of the claim, Zurich assigned the claim to CS
Claims Group to investigate the claim and obtain the police report, medical examiner’s report,
autopsy report, and toxicology report. (DE 36-9). On June 28, 2013, Zurich notified Plaintiff that
in addition to the above reports, it was requesting to review the worker’s compensation “first report
of injury” for Mr. Werbianskyj’s death. (DE 36-10). In August, 2013, Plaintiff was notified that
the claim had been sent for medical records review. (DE 36-11).
Dr. William Manion, MD of Medford, New Jersey to review Mr. Werbianskyj’s records
and opine as to the following: (1) please advise the level of intoxication for the THC in the
deceased’s system at the time of death based on his height and weight; (2) was the THC prescribed
by a physician and taken in accordance with a prescribed dosage; and (3) was the THC level
enough to impair the deceased to cause the events leading to the electrocution? (DE 36-12, p. 2).
On September 5, 2013, Dr. Manion issued his report wherein he listed the records he had reviewed,
including the Indiana Worker’s Compensation First Report of Employee Injury, the Noble County
Coroner Investigation Report, the Parkview Noble Hospital Records, the Ligonier Police
Department Investigation Report, the Noble County Coroner Autopsy/Toxicology Reports and the
Death Certificate. Dr. Manion noted that the Plaintiff had advised the Ligonier Police Department
that several days prior to the incident, Mr. Werbianskyj had smoked marijuana at a funeral. Dr.
Manion further reported that in his opinion the high level of THC-COOH in Mr. Werbianskyj’s
blood indicated that he was a “chronic marijuana user.” (DE 36-12, p. 1). Dr. Manion cited
numerous articles and studies indicating that THC concentrations in excess of 2-3 ng/mL were
4
statistically significant so as to impair driving ability and increase the risk of an accident. In
conclusion, Dr. Manion opined as follows:
“[A]fter review of the medical literature it would be my opinion to a reasonable
degree of medical and forensic certainty that the THC level was high enough to
significantly impair the deceased and contribute to the events that led to his
electrocution. The conclusion is based on multiple studies of drivers who are either
involved in accidents or are at substantial risk for being involved in a car accident
when their marijuana levels are at the level of 5.8 ng/mL as exhibited by Mr. Mark
Werbianskyjj at autopsy. I hold all opinions to a reasonable degree of medical and
forensic certainty.
(DE 36-12, pp. 2-3).3
Thereafter, CS Claims Group continued investigating the incident and collecting additional
records relating to Mr. Werbianskyj’s death. The record contains numerous letters to the Plaintiff
notifying her of the progress of the claim and the actions being undertaken in the investigation of
the claim. (DE 36-14).
On September 17, 2014, Dr. Manion issued a second letter in response to a request that he
review additional reports and answer the same three questions originally posed. Dr. Manion
reviewed documents from the Indiana Department of Labor and the Indiana Worker’s
Compensation Board. His letter reiterated his original conclusion stating “after review of these
additional records, it remains my opinion to a reasonable degree of medical and forensic certainty
that the THC level was high enough to significantly impair Mr. Werbianskyj and contribute to the
events that led to his electrocution.” (DE 36-15, p. 8). Dr. Manion further noted that he reviewed
no records indicating that the THC in Mr. Werbianskyj’s system was prescribed by a physician or
taken in accordance with a prescribed dosage. Dr. Manion was also asked to opine on two
additional questions: (1) What action from the impairment would have contributed to the outcome
3
Dr. Manion stated that he had not been provided any records indicating that Mr. Werbinaskyj was
legally prescribed marijuana.
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here; and (2) Would someone not under the influence have done anything different? In response
to the first question, Dr. Manion wrote:
The Investigation Summary of the US Department of Labor Occupational Safety
and Health Administration classified the Human Factor as ‘Misjudgment of
hazardous situation.’ The misjudgment of the hazardous situation occurred because
Mr. Werbianskyj was significantly impaired by the high level of the active
marijuana drug delta 9 THC. Such high levels interfere with attention to detail,
judgment, and concentration. Thus, the high level of delta 9 THC was a significant
contributing factor to the ‘Misjudgment of hazardous situation’ with electrocution
and death of Mr. Werbianskyj.
With respect to the second question, Dr. Manion opined:
Yes a person not under the influence of high levels of delta 9 THC would not have
touched the hot bare conductor wire touching the metal part of the light plug. An
individual not under the influence of delta 9 THC would have taken precautions to
not touch the hot bare conductor wire but instead would have insulated the hot bare
conductor wire to prevent accidental electrocution.
(DE 36-15, p. 9).
On September 19, 2014, after receiving Dr. Manion’s second letter, Zurich notified
Plaintiff by letter that her claim under the Policies was denied. (DE 36-16). As part of that letter,
Zurich identified the relevant policy provisions and noted the documents reviewed regarding the
incident, particularly the toxicology report.
The letter further summarized Dr. Manion’s
conclusions and informed Plaintiff that Zurich had concluded that “as death was not the result of
an accidental bodily injury as defined in the Policies, and is also not covered under the Policy
Exclusions of being under the influence of a controlled substance at the time of the event, we regret
that we are unable to approve payment of the accidental death benefit under the Policies.” (Id. at
p. 3).
On November 4, 2014, Plaintiff notified Zurich, through counsel, that she was appealing
the denial of benefits and requesting documents. (DE 36-17). Those documents were timely
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provided. The appeal was forwarded to Zurich’s ERISA Appeals Committee (“the Committee”)
for review. Plaintiff did not submit anything to Zurich between November 5, 2014 and January 6,
2015. On January 6, 2015, the Committee notified Plaintiff that “[f]ollowing our review of the
claim file and the appeal letter, the Committee affirms the denial of the claim for the reasons set
forth in the Zurich letter of 9/19/14 as well as the reasons set forth in this letter.” (DE 36-19, p.
1). The Committee letter again recited the Policy provisions relied upon by Zurich to deny the
claim and, with respect to the factual scenario, it stated:
Following the ERISA Committee’s review of the appeal and our claim file, the
ERISA Committee finds that Mark Werbianskyj’s death claim is not covered under
the Policy due to the definitions and exclusions included above and as stated in our
original denial letter. In response to your appeal letter, I point out that the definition
of Covered Injury indicates that the injury must be caused by accidental means
which is independent of all other causes and results from a [C]overed [A]ccident.
The evidence in this case, which includes the toxicology report and the independent
examiner’s report, indicates that the use of cannabinoids/THC prior to the accident
was a significant contributing cause to the accident. In addition, the cited
exclusions apply to the claim.
(Id. at p. 3). Subsequently on February 23, 2015, Plaintiff filed the present lawsuit.
DISCUSSION
This action arises under the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. §1001. “ERISA was enacted 'to promote the interests of employees and
their beneficiaries in employee benefit plans,' and 'to protect contractually defined benefits.”'
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989) (internal citations omitted).
ERISA “permits a person denied benefits under an employee benefit plan to challenge that denial
in federal court.” Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). ERISA's civilenforcement provision allows a claimant “to recover benefits due to him under the terms of his
plan [and] to enforce his rights under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B)).
7
The Supreme Court announced the general rule in Firestone that “[a] denial of benefits
challenged under [ERISA] is to be reviewed under a de novo standard unless the benefit plan gives
the administrator or fiduciary discretionary authority to determine eligibility for benefits or to
construe the terms of the plan.” 489 U.S. at 115. If the benefit plan contains a discretionary clause,
then the denial of benefits is to be reviewed under an arbitrary and capricious standard. Metro. Life
Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008) (citing Firestone, 489 U.S. at 111, 115). In this case
the parties agree that the Policies contain such a provision and thus, the appropriate standard of
review is a deferential one rather than de novo.
Where the arbitrary and capricious standard of review applies, the Court’s review is
limited to the administrative record. Perlman v. Swiss Bank Corp. Comprehensive Disability Prot.
Plan, 195 F.3d 975, 982 (7th Cir. 1999) (“…judicial review is limited to the evidence that was
submitted in support of the application for benefits, and the mental processes of the plan's
administrator are not legitimate grounds of inquiry any more than they would be if the
decisionmaker were an administrative agency.”). Thus, “under the arbitrary and capricious
standard, the reviewing court must ensure only that a plan administrator's decision ‘has rational
support in the record.’ ” Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d 355, 360 (7th Cir. 2011)
(quoting Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 812 (7th Cir. 2006)). In other words,
“[w]hen determining whether a decision to deny benefits was arbitrary and capricious, ‘we look to
whether specific reasons for denial [were] communicated to the claimant, whether claimant [was]
afforded an opportunity for full and fair review by the administrator, and whether there is an
absence of reasoning to support the plan's determination.’ ” Green v. Sun Life Assurance Co., ___
F. Supp. 3d ____, 14 C 4095, 2016 WL 861236, at *4 (N.D. Ill. Mar. 7, 2016) (quoting Leger v.
Tribune Co. Long Term Disability Benefit Plan, 557 F.3d 823, 832–33 (7th Cir. 2009)). “Put
8
simply, an administrator's decision will not be overturned unless it is ‘downright unreasonable.’ ”
Edwards, 639 F.3d at 360 (quoting Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569, 576 (7th
Cir. 2006); Sisto v. Ameritech Sickness & Accident Disability Benefit Plan, 429 F.3d 698, 70 (7th
Cir. 2005)). “Although our review is highly deferential, it ‘is not a rubber stamp.’ ” Cerentano v.
UMWA Health & Ret. Funds, 735 F.3d 976, 981 (7th Cir. 2013) (quoting Holstrom v. Metro Life
Ins. Co., 615 F.3d 758, 766 (7th Cir. 2010)); see also Edwards, 639 F.3d at 360; Hackett v. Xerox
Corp. Long-Term Disability Income Plan, 315 F.3d 771, 774 (7th Cir. 2003).4
The Court’s analysis begins with a recitation of the reasons provided for denying Plaintiff’s
request for benefits. Zurich maintains two reasons for its claim denial: first, it asserts that Mr.
Werbianskyj’s death was not “Accidental Bodily Injury” or a “Covered Injury” as defined in the
Policies since it was influenced by the THC in Mr. Werbianskyj’s blood at the time of the event;
and second, it asserts that a loss caused by or resulting from the insured “being under the influence
of any prescription drug, narcotic, or hallucinogen, unless….prescribed by a physician and taken
in accordance with the prescribed dosage” is specifically excluded under the Policies.
Given these two rationales for denying benefits, Zurich asserts that the record clearly
supports its decision to deny benefits given the results of the toxicology report and Dr. Manion’s
opinions. It contends that the administrator gave the claim thorough review, utilized a deliberate,
principled reasoning process, interpreted the Policies appropriately and made a rational conclusion
4
An arbitrary and capricious standard should be utilized even when a conflict of interest exists.
Metro Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). The Supreme Court has held that a conflict of interest
exists for ERISA purposes where the plan administrator evaluates and pays benefit claims, even where the
administrator is an insurance company and not the beneficiary's employer. Id. at 111. In determining
whether the decision to deny benefits was arbitrary and capricious, Courts will weigh, as a factor, a potential
conflict of interest. Id. at 117; Firestone, 489 U.S. at 115. Here it appears that the administrator is the same
as the insurance carrier. Thus, to the extent a potential conflict of interest exists, the Court has considered
that in the analysis.
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supported by the facts in determining that the claim should be denied. Thus, it urges the Court to
grant summary judgment in Zurich’s favor.
In contrast, Plaintiff argues that Zurich’s determination that Mr. Werbianskyj’s death was
not the result of an Accidental Bodily Injury was arbitrary and capricious as was its conclusion
that the death was not covered under the Policies because of the exclusion for “being under the
influence of a controlled substance.” With respect to the first determination, Plaintiff contends
that the ordinary purchaser of an accidental death insurance policy would think that the
unintentional and unexpected electrocution of her husband constitutes death by accident. As for
the second determination, Plaintiff argues that Zurich’s conclusion is arbitrary and capricious
because it is required to prove more than Werbianskyj was “under the influence” at the time of
event.
To sustain her position, Plaintiff cites Sellers v. Zurich Am. Ins. Co., 627 F.3d 627, 732 (7th
Cir. 2010) and Kovach v. Zurich Am. Ins. Co., 587 F.3d 323, 336 (6th Cir. 2009) wherein both the
Seventh and Sixth Circuits concluded that the insurer’s interpretation of “accident” (which was
not expressly defined in the policies) was arbitrary because the insurer did not define the term
“accident” in the ordinary sense based upon a ‘person of average intelligence and experience’ in
the decedent’s shoes.
The issue in Sellers involved a decedent who died from heart complications during a
follow-up surgery to repair a broken wire set in place after the decedent was injured at work months
early. The decedent’s widow sought accidental death benefits from the insurer due to the death
claiming that the wire break constituted an accidental bodily injury. After the physician that
installed the original wire represented to the insurer that the wire was “expected” to fail, the insurer
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determined the death could not be deemed accidental under the policy. The policy, unlike the
Policies here, did not define “accident” or “accidental.” (Id.).
In finding the insurer’s interpretation unreasonable the Court determined that the insurer
failed to consider the event as it would be understood by a person of average intelligence and
experience. That said, however, the Court ultimately sustained the insurer’s denial of benefits
because of prior precedent that held “a policy of accidental insurance does not reach … injuries
resulting from medical treatment.” See Senkier v. Hartford Life & Acc. Ins. Co., 948 F.2d 1050
(7th Cir. 1991).
In Kovach, the insured was riding his motorcycle while intoxicated, ran a stop sign, and
collided with another vehicle in the intersection. At the time of the accident his BAC tested .148%.
He sustained severe injuries that led to the amputation of his left leg below the knee. Mr. Kovach
was insured under an accidental death and dismemberment insurance policy provided by his wife's
employer. He and his wife filed a claim with Zurich (coincidentally the same insurer as in the
present case) for dismemberment benefits. Zurich denied the Kovachs' claim after determining that
Mr. Kovach's injuries were the “reasonably foreseeable consequence of driving while highly
intoxicated and under the influence of drugs” and therefore not covered as an “accidental”
occurrence under the Plan. In examining the record, the Court noted:
The facts surrounding Mr. Kovach's crash, however, are nowhere near as dramatic
as those in Lennon.5 Besides driving while intoxicated—at a level less than half that
5
Lennon refers to Lennon v. Metropolitan Life Insurance Co., 504 F.3d 617 (6th Cir.2007). In that case
the insured drove his car his car at a high rate of speed the wrong way down a one-way portion of a
divided street, losing control of his vehicle. The car hit a curb, flew into the air, and slammed into a brick
wall, killing Lennon. Lennon's BAC was later measured at .321, more than three times the legal limit in
effect at the time (.10) and high enough to render him only semi-conscious. The insurer denied benefits
under a personal accident insurance policy stating that “the act of driving impaired … rendered the
infliction of serious injury or death reasonably foreseeable and, hence, not accidental.” Id. at 620. The
case spawned three separate opinions from the Sixth Circuit – a lead, a concurrence, and a dissent. The
lead opinion determined that the insurer’s denial was not arbitrary and capricious and determined that in
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of Lennon—the only other out-of-the-ordinary thing that Mr. Kovach did was run
a stop sign, something done with unfortunate frequency by sober drivers. There is
no indication in the record that Mr. Kovach was traveling at an abnormally high
rate of speed or driving in an otherwise risky manner.
587 F.3d at 331. The Court then determined that the insurer’s interpretation of the plan was
arbitrary and capricious because it added an “eligibility requirement” to its interpretation of
“accidental” by “excluding activities that render the risk of serious injury ‘reasonably
foreseeable.’” Id. at 336. Instead, the Court noted:
Zurich could have easily added an exclusion in the Plan for driving while
intoxicated if it had wished to do so, but it did not. The sheer number of court cases
nationwide involving disputes over claims by drunk drivers certainly would have
put it on notice that it would likely face claims under its AD & D policies based on
injuries sustained in alcohol-related collisions.
Id.
Zurich does not address the holdings in either Sellers or Kovach, instead focusing on the
definitions in its Policies, the process it utilized to make its decision and the facts of this particular
case. In any event, the court concludes that Plaintiff’s reliance on Sellers and Kovach ultimately
does not improve her position based on the facts of this case. First, unlike here where the Policies
expressly define the term “Accident,” the policies in Sellers and Kovach did not. See Am.
Alternative Ins. Corp. v. Metro Paramedic Servs., Inc., ____ F.3d ___, No. 15-2310, 2016 WL
3741947, at *4 (7th Cir. July 12, 2016) (when not specifically defined, “terms utilized in the policy
are accorded their plain and ordinary meaning.”).
Second, Zurich’s denial letter detailed all the policy definitions and provisions being relied
upon and specifically outlined the reasons for the denial ultimately concluding that “death was not
cases where an insured’s behavior can be deemed grossly negligent a plan administrator could “treat such
conduct as not accidental under a policy that only covers accidents.” Id. at 621.
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the result of an accidental bodily injury as defined in the Policies…” Unlike in Sellers and Kovach,
Zurich did not contend that Mr. Werbianskyj’s electrocution did not constitute an “accident;” what
it stated was that “the THC level was high enough to significantly impair the deceased and
contribute to the events that led to his electrocution.” (DE 36-16. p. 2). The Policies define
“Accident” as “a sudden, unexpected, specific and abrupt event …” and “Covered Injury” as “an
injury directly caused by accidental means which is independent of all other causes.”(emphasis
added). After examining the record, which included Dr. Manion’s conclusions as well as the
toxicology report, Zurich concluded that Mr. Werbianskyj’s THC level was a contributing cause
of the accident thereby making the accident not a Covered Injury.
In contrast to the cases cited by the Plaintiff, Zurich has set forth a number of cases and the
Court has found some additional cases where Courts concluded that it is not arbitrary and
capricious for an insurer to deny benefits where it determines that an insured’s level of intoxication
or drug usage impaired the insured’s ability to avoid an accident.
In Clark v. Life Ins. Co. of N. Am., 950 F. Supp. 2d 1348, 1350 (N.D. Ga. 2013), for
instance, the decedent was riding his motorcycle on a highway in Boulder, Colorado, when he
skidded off the road, was thrown from the motorcycle, and collided with a tree. Tragically, he died
as a result of the injuries he sustained. The subsequent investigation showed that at the time of the
accident the decedent was not wearing a helmet; he had a 0.176 *1350 gm/dL blood alcohol
concentration (“BAC”); and he tested positive for marijuana. The investigation also showed that
the decedent was riding downhill below the speed limit. He was approaching a curve on a dry,
paved road when he appears to have braked hard and skidded twenty-six feet to the right, off the
road. There were no adverse weather conditions at the time of the crash, and there were no other
vehicles involved in the crash. There also were no defects or obstacles in the road.
13
The policy at issue provided that the insurer will “pay benefits for loss from bodily injuries:
a) caused by an accident which happens while an insured is covered by this policy; and b) which,
directly and from no other causes, result in a covered loss.” In denying the claim, the insurer stated
that under the policy an accident was a “sudden, unforeseeable, external event” and that a loss that
results from “an action whose outcome is reasonably foreseeable is not a Covered Accident as this
policy defines it.” It went on to explain that “[s]erious injury and death ... are foreseeable outcomes
of operating a motor vehicle while legally intoxicated.” Thus, the insurer determined that a loss
“resulting from driving while under the influence of alcohol is not an unforeseeable Covered
Accident.” That said, the insurer stated that if the insured could prove that the decedent’s death
“did not result from driving under the influence of alcohol or THC [marijuana]” it would
reconsider her claim. Based upon the record available to the insurer and the absence of conflicting
evidence to the contrary, the Court concluded that the insurer acted reasonably and not arbitrary
and capricious.
As was the case in Clark, Zurich’s investigation determined that the THC level in Mr.
Werbianskyj’s system was significant and contributed to his judgment which, in turn, caused him,
an experienced maintenance man, to touch bare hot wires rather than insulate them. Plaintiff
argues that Zurich did not provide sufficient evidence about how her husband’s THC level affected
his ability to make sound judgments. But, looking at Dr. Manion’s two letters, communicated to
Plaintiff at the time Zurich denied benefits, Dr. Manion, after fully reviewing the reports and
records of numerous agencies, clearly articulates that an individual with the level of THC in his
system that her husband did at the time of the electrocution “interfere with attention to detail,
judgment and concentration.” He further concluded “a person not under the influence of high
levels of delta 9 THC would not have touched the hot bare conductor wire touching the metal part
14
of the light plug” rather “an individual not under the influence ….would have taken precautions to
not touch the bare conductor wire but instead would have insulated the hot bare conductor wire to
prevent accidental electrocution.”
Moreover, the Plaintiff never presented any evidence to Zurich that the THC level found
in the toxicology report could not have contributed to the cause of the electrocution. She did not
even state in her appeal letter to Zurich that her spouse’s THC level was so low that it could not
have impaired his judgment, thus contributing to the cause of his accident. Rather, she merely
argues in her brief that the fact that THC was in his system is insufficient for Zurich to conclude
that her husband was impaired at the time of death.6 But, that is not what Zurich did here. Zurich
had an independent medical reviewer who on two occasions reviewed the administrative record
and determined that the level of THC in Mr. Werbianskyj’s system impaired his judgment and,
absent that level of impairment, Mr. Werbianskyj would not have been electrocuted by touching
bare wires. Given that she has the burden to show that the insurer acted unreasonably, just as in
Clark, the Plaintiff has not met that burden here.
Moreover, courts across the country have upheld plan administrators’ determinations that
deaths are not “accidental” when the decedent is under the influence of drugs or alcohol at the time
of an accident and no other apparent cause of the incident exist. Stamp v. Metropolitan Life Ins.
Co., 531 F.3d 84 (1st Cir. 2008) (upholding administrator’s determination that the death of the
insured was not accidental where had a BAC of .265% and drove his truck into a tree); Eckelberry
v. Reliastar Life Ins. Co., 469 F.3d 340, 345 (4th Cir.2006) (upholding plan administrator’s
6
Plaintiff makes the argument that Zurich’s denial letter refers to THC as a “controlled substance” and
that term is not found in the Policy’s Intoxication Exclusion. Rather, the terms utilized in the exclusion
are “prescription drug, narcotic, or hallucinogen.” She further contends that THC is not a “hallucinogen”
or a “narcotic” and thus, the Policy exclusion does not apply. This argument is disingenuous given that
both state and federal law classify THC as a “hallucinogen.” See Ind. Code §35-48-2-4(d)(31); 21 U.S.C.
§1308.11.
15
decision where insured had 0.15 BAC, which was fifty percent higher than legal limit and noting
that federal courts have with “nearly universal accord” upheld plan administrators’ determinations
that “alcohol related injuries and deaths are not ‘accidental’ under insurance contracts governed
by ERISA.”); see also, Lennon v. Metro. Life Ins. Co., 504 F.3d at 622–23; Cozzie v. Metro. Life
Ins. Co., 140 F.3d 1104, 1110 (7th Cir.1998)(finding denial of accidental-death benefits reasonable
where there were no witnesses to car crash and no apparent cause of crash other than insured's
impaired condition); Weatherall v. Reliastar Life Ins. Co., 398 F.Supp.2d 918, 924
(W.D.Wis.2005); Mullaney v. Aetna U.S. Healthcare, *90 103 F.Supp.2d 486, 494 (D.R.I.2000);
Walker v. Metro. Life Ins. Co., 24 F.Supp.2d 775, 782 (E.D.Mich.1997); Schultz v. Metro. Life Ins.
Co., 994 F.Supp. 1419, 1422 (M.D.Fla.1997); Nelson v. Sun Life Assurance Co., 962 F.Supp. 1010,
1012 (W.D.Mich.1997); Miller v. Auto–Alliance Int'l, Inc., 953 F.Supp. 172, 176–77
(E.D.Mich.1997); Cates v. Metro. Life Ins. Co., 14 F.Supp.2d 1024, 1027 (E.D.Tenn.1996).
In this case, the record clearly supports the conclusion that Zurich considered the terms and
conditions of its Policies, the entire administrative record before it and hired a forensic pathologist
to aid in determining whether Mr. Werbianskyj’s death fell within the purview of the Policies. Dr.
Manion reviewed the entire record and concluded that Mr. Werbianskyj’s use of THC contributed
to his misjudgment when he touched hot bare wires. Plaintiff submitted no competing evidence
and, in actuality, she submitted no evidence whatsoever to call into question the conclusions of
Dr. Manion. Given this record, there is no question that Zurich acted reasonably in interpreting its
Policies and denying benefits.
Accordingly, Zurich’s Motion for Summary Judgment is
GRANTED.
CONCLUSION
16
Based on the foregoing, Zurich’s Motion for Summary Judgment [DE 35] is GRANTED.
The Clerk is DIRECTED to enter judgment in favor of the Defendant.
Entered: This 1st day of August, 2016
s/ William C. Lee
United States District Court
17
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