McGinn et al v. Metropolitan Life Insurance Company

Filing 49

ORDER AND REASONS granting dft's 36 Motion for Summary Judgment; denying pla's 38 Motion for Summary Judgment. Signed by Judge Lance M Africk on 9/8/2014. (lag)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

AMBRE P. MCGINN

CIVIL ACTION

VERSUS

No. 11-3025

METROPOLITAN LIFE INSURANCE CO.

SECTION I

ORDER AND REASONS
Before the Court are cross-motions1 for summary judgment filed by plaintiff, Ambre P.
McGinn, and defendant, Metropolitan Life Insurance Company (“MetLife”). For the following
reasons, plaintiff’s motion is DENIED and defendant’s motion is GRANTED.
BACKGROUND
Plaintiff, Ambre P. McGinn, filed the complaint in the above-captioned matter
“individually and on behalf of her minor children, Joseph L. McGinn, IV and Shane P.
McGinn.”2 Plaintiff’s children are the beneficiaries of a life insurance policy on the life of
plaintiff’s deceased husband, Joseph L. McGinn, III.3 These benefits were provided pursuant to
decedent’s life insurance policy (the “Plan”) sponsored by his former employer.4 MetLife issued
the group insurance policy that provided benefits under the Plan.5
Plaintiff alleges that on March 17, 2011, her husband was traveling up a traffic ramp
when he was ejected from his motorcycle due to an alleged hit-and-run accident, thrown over the
ramp’s barrier onto the ground below, and died.6 Although decedent’s motorcycle was found at

1

R. Doc. Nos. 36, 38.
R. Doc. No. 1-1, at 1.
3
R. Doc. No. 1-1, at 4; R. Doc. No. 5, at 2.
4
R. Doc. No. 1-1, at 4; R. Doc. No. 5, at 2.
5
R. Doc. No. 5, at 2.
6
R. Doc. No. 1-1, at 4-5.
2

approximately 6:30 P.M. on March 17, 2011,7 decedent’s body was not discovered until
approximately 8:00 A.M. on March 18, 2011.8
Plaintiff submitted a claim for life insurance and accidental death benefits under the Plan.
MetLife paid life insurance benefits to plaintiff,9 although it denied the claim with respect to the
accidental death benefits.10
On July 14, 2014, the Court found that the Plan was governed by ERISA, that plaintiff’s
causes of action based on state law were preempted, and that all of plaintiff’s claims would be
decided pursuant to ERISA.11 Defendant filed its motion for summary judgment on August 5,
2014,12 and plaintiff filed her motion for summary judgment on August 12, 2014.13
STANDARD OF LAW
I.

Summary Judgment

Summary judgment is proper when, after reviewing the pleadings, the discovery and
disclosure materials on file, and any affidavits, the court determines there is no genuine issue of
material fact. See Fed. R. Civ. P. 56. “[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis for its motion and identifying
those portions of [the record] which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary
judgment need not produce evidence negating the existence of material fact, but need only point

7

R. Doc. No. 38-8, at 26 (identified as M-0147).
See, e.g., R. Doc. No. 38-7, at 18 (identified as M-0109).
9
R. Doc. No. 1-1, at 4-5; R. Doc. No. 5, at 2-3.
10
R. Doc. No. 1-1, at 5.
11
R. Doc. No. 32, at 9.
12
R. Doc. No. 36.
13
R. Doc. No. 38.
8

2

out the absence of evidence supporting the other party’s case. Id.; Fontenot v. Upjohn Co., 780
F.2d 1190, 1195 (5th Cir. 1986).
Once the party seeking summary judgment carries its burden pursuant to Rule 56, the
nonmoving party must come forward with specific facts showing that there is a genuine issue of
material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). The showing of a genuine issue is not satisfied by creating “‘some metaphysical doubt as
to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a
‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations
omitted). Instead, a genuine issue of material fact exists when 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 (1986). The party responding to the motion for summary judgment may not
rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. The
nonmoving party’s evidence, however, “is to be believed, and all justifiable inferences are to be
drawn in [the nonmoving party’s] favor.” Id. at 255; see also Hunt v. Cromartie, 526 U.S. 541,
552 (1999).
II.

ERISA

ERISA permits a beneficiary of a welfare plan to initiate legal action to “recover benefits
due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to
clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).
Nevertheless, judicial review of a plan administrator’s benefits determination is not limitless, but
limited. Reviewing courts are required to show a certain amount of deference to administrative
determinations because, as the U.S. Supreme Court recently reiterated: “Deference promotes
efficiency by encouraging resolution of benefits disputes through internal administrative

3

proceedings rather than costly litigation. It also promotes predictability, as an employer can rely
on the expertise of the plan administrator rather than worry about unexpected and inaccurate plan
interpretations that might result from de novo judicial review.” Conkright v. Frommert, 599 U.S.
506, 517 (2010).
A court must review a denial of ERISA benefits 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.” Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 115 (1989); Wegner v. Standard Ins. Co., 129 F.3d 814, 818 (5th Cir. 1997). If a plan
“gives the Plan Administrator the discretionary authority to construe the Plan’s terms and to
render benefit decisions,” then a court must review the administrator’s decisions subject to an
abuse of discretion standard. Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir.
2009). The Court has previously examined the policy and determined that MetLife has such
authority.14 Accordingly, the Court will review MetLife’s decision for an abuse of discretion.15
The Fifth Circuit has outlined a “two-step analysis in determining whether a plan
administrator abused its discretion in construing plan terms.” Vercher v. Alexander & Alexander
Inc., 379 F.3d 222, 227 (5th Cir. 2004) (citing Rhorer v. Raytheon En’rs & Const’rs, Inc., 181
F.3d 634, 639 (5th Cir. 1999)). As the Fifth Circuit has explained:
First, we determine whether the [administrator’s] determination was legally
correct. If so, the inquiry ends and there is no abuse of discretion. Alternatively, if
the court finds the administrator’s interpretation was legally incorrect, the court
must then determine whether the administrator’s decision was an abuse of
discretion. Only upon reaching this second step must the court weigh as a factor
whether the administrator operated under a conflict of interest.
14

R. Doc. No. 32, at 9-12.
Although certain imprecise language in plaintiff’s motion for summary judgment may suggest
that plaintiff contends this Court should apply a de novo standard of review, see R. Doc. No.
38-1, at 6, plaintiff does not appear to seriously dispute that an abuse-of-discretion standard
applies, see R. Doc. No. 47, at 2.
15

4

Stone v. UNOCAL Termination Allowance Plan, 570 F.3d 252, 257 (5th Cir. 2009) (citations
omitted).
In determining whether an administrator’s interpretation of a plan term is legally correct,
a court must consider three factors: “‘(1) whether the administrator has given the plan a uniform
construction, (2) whether the interpretation is consistent with a fair reading of the plan, and (3)
any unanticipated costs resulting from different interpretations of the plan.’” Id. at 258 (quoting
Crowell v. Shell Oil Co., 541 F.3d 295, 312 (5th Cir. 2008)). The most important factor in this
analysis is “whether the administrator’s interpretation was consistent with a fair reading of the
plan.” Id. (citing Crowell, 541 F.3d at 313).
As stated, if a court finds that the administrator’s interpretation was not legally correct,
then it must resolve whether an administrator has abused its discretion. A plan administrator
abuses his discretion where the decision is not “‘based on evidence, even if disputable, that
clearly supports the basis for its denial.’” Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 342
(5th Cir. 2002) (quoting Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999)). A
court must find that an administrator has abused its discretion only when “the plan administrator
acted arbitrarily or capriciously.” Holland, 576 F.3d at 246 (quoting Meditrust Fin. Servs. Corp.
v. Sterling Chems., Inc., 168 F.3d 211, 214 (5th Cir. 1999)). “A decision is arbitrary only if made
without a rational connection between the known facts and the decision or between the found
facts and the evidence.” Id. (citing Meditrust, 168 F.3d at 215)). A court’s “review of the
administrator’s decision need not be particularly complex or technical; it need only assure that
the administrator’s decision fall somewhere on a continuum of reasonableness—even if on the
low end.” Id. at 247 (internal quotation marks omitted) (quoting Corry v. Liberty Life Assurance
Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007)).

5

A plan administrator’s factual determinations “are always reviewed for abuse of
discretion.” Vercher, 379 F.3d at 226. Again, a plan administrator’s decision to deny benefits
must be “‘based on evidence, even if disputable, that clearly supports the basis for its denial.’”
Lain, 279 F.3d at 342 (quoting Vega, 188 F.3d at 299). If the administrator’s decision to deny a
claim is supported by “‘some concrete evidence in the administrative record,’” the administrator
did not abuse its discretion. Id. (quoting Vega, 188 F.3d at 302). A reviewing court cannot
substitute its judgment for that of the plan administrator. McDonald v. Hartford Life Grp. Ins.
Co., 361 F. App’x 599, 608 (5th Cir. 2010).
The Court may consider whether MetLife, in its dual role as insurer and plan
administrator, had a conflict of interest that affected the benefits determination. Id. However, the
U.S. Supreme Court has stated that weighing a conflict of interest as a factor does not “impl[y] a
change in the standard of review, say, from deferential to de novo review.” Met. Life Ins. Co. v.
Glenn, 554 U.S. 105, 115 (2008). “Quite simply, ‘conflicts are but one factor among many that a
reviewing judge must take into account.’” Holland, 576 F.3d at 247-48 (quoting Glenn, 554 U.S.
at 116).
DISCUSSION
The Plan contains the following provision for accidental death:
ACCIDENTAL DEATH AND DISMEMBERMENT INSURANCE
If You or a Dependent sustain an accidental injury that is the Direct and
Sole Cause of a Covered Loss described in the SCHEDULE OF BENEFITS,
Proof of the accidental injury and Covered Loss must be sent to Us. When We
receive such Proof We will review the claim and, if We approve it, will pay the
insurance in effect on the date of the injury.
Direct and Sole Cause means that the Covered Loss occurs within 12
months of the date of the accidental injury and was a direct result of the accidental
injury, independent of other causes.16
....
16

R. Doc. No. 38-6, at 10 (identified as M-0070).
6

Exclusion for Intoxication
We will not pay benefits under this section for any loss if the injured party
is intoxicated at the time of the incident and is the operator of a vehicle or other
device involved in the incident.
Intoxicated means that the injured person’s blood alcohol level met or
exceeded the level that creates a legal presumption of intoxication under the laws
of the jurisdiction in which the incident occurred.17
MetLife denied benefits to plaintiff18 and reaffirmed its denial after two appeals because
of the intoxication exclusion.19 According to the toxicology report, decedent’s blood alcohol
concentration was 0.37%.20 The parties do not contest this finding,21 and such level is over four
times the legal limit in Louisiana. See La. Rev. Stat. § 14:98(A)(1) (“The crime of operating a
vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or
other means of conveyance when: (a) The operator is under the influence of alcoholic beverages;
or (b) The operator’s blood alcohol concentration is 0.08 percent or more by weight based on
grams of alcohol per one hundred cubic centimeters of blood . . . .”). As MetLife stated in its
October 11, 2013 letter: “[A]lcohol impairs the drinker’s judgment and physical and mental
reactions. As the Plan states that Accidental Death benefits are not payable if the operator of a
vehicle is intoxicated at the time of the incident, your clients’ claims were denied on May 21,
2012.”22
Plaintiff’s objection to MetLife’s determination is based primarily on the Orleans Parish
Coroner’s report regarding decedent’s autopsy. The report lists the date and time of death as

17

R. Doc. No. 38-6, at 11 (identified as M-0071).
See R. Doc. No. 38-9, at 5-7 (identified as M-0155 to -0157).
19
See R. Doc. No. 38-10, at 9-11 (identified as M-0189 to -0191); R. Doc. No. 38-10, at 23-26
(identified as M-0203 to -0206).
20
R. Doc. No. 38-9, at 2 (identified as M-0152).
21
R. Doc. No. 42-1, at 11; see also R. Doc. No. 36-13, at 4; R. Doc. No. 39-1, at 2.
22
R. Doc. No. 38-10, at 24 (identified as M-0204).
18

7

March 18, 2011, at 8:08 A.M.23 Plaintiff therefore concludes that “Decdent lived for thirteen
hours before he [died] from lack of medical attention” and that he “would have survived had
medical attention been timely available.”24 Plaintiff contends that “[t]he negligence of the police
officers and lack of medical attention are the sole cause of Decedent’s death,” so the intoxication
exclusion should not apply because “[t]he presence of alcohol in Decedent’s blood stream
play[ed] no role in Decedent’s demise.”25
Following the denial of plaintiff’s first appeal, plaintiff provided MetLife with a report
from Dr. Olga Krivitsky in support of her contention.26 Dr. Krivitsky stated that it was her
medical opinion that if decedent had “received prompt medical attention at the time of the
accident, or shortly thereafter, he would [have] had a good chance of survival.”27 Dr. Krivitsky
came to this conclusion “based on the reports on the condition of the decedent’s vital organs at
the time of death.”28 Dr. Krivitsky also stated that “[t]he fact that the decedent did not expire
from his wounds until twelve to thirteen hours later is my basis for this conclusion.”29
Upon receipt of Dr. Krivitsky’s report, MetLife sought the opinion of Dr. Elyssa Del
Valle.30 Dr. Del Valle concluded that, “[w]ithin a reasonable degree of medical certainty, it can
be determined that the decedent’s injuries were such that he would have died shortly after the
crash. . . . There would not have been any time at all to treat these life threatening injuries. He
was found dead. These types of injuries are lethal.”31 With respect to the coroner’s report, Dr.

23

R. Doc. No. 38-8, at 2 (identified as M-0123).
R. Doc. No. 38-1, at 4.
25
R. Doc. No. 38-1, at 4.
26
R. Doc. No. 38-10, at 12-13 (identified as M-0192 to -0193).
27
R. Doc. No. 38-10, at 13 (identified as M-0193).
28
R. Doc. No. 38-10, at 13 (identified as M-0193).
29
R. Doc. No. 38-10, at 13 (identified as M-0193).
30
R. Doc. No. 38-10, at 21 (identified as M-0201).
31
R. Doc. No. 38-10, at 21 (identified as M-0201).
24

8

Del Valle stated: “The time of death given by the coroner was the time he was found, not the
time of his actual death. He was in full rigor as of the time of [the] autopsy. He died in my
opinion at the time of the accident.”32
Dr. Del Valle also addressed Dr. Krivitsky’s opinion, and noted that Dr. Krivitsky’s
opinion “is likely based on the time of death given by the coroner as Dr. Krivitsky reiterates in
his hypothesis that he lived for 13 hours after [the] accident.”33 Dr. Del Valle suggested: “If there
is any doubt, please ask the coroner for his opinion and explanation as to why the time of 8 am
3/18/11 was given as [the] time of death. I am fairly certain within reasonable medical certainty
that the response would be that this was the time he was found in [the] grass. He was in full rigor
when examined at 10 am.”34 Dr. Del Valle ended her report by reiterating that “the alcohol level
noted would contribute to the accident” and that “[m]ultiple trauma such as described in [the]
autopsy would result in immediate death.”35
MetLife’s October 11, 2013 letter to plaintiff, which denied her appeal for the second
time, stated in pertinent part:
As suggested by the expert physician, [MetLife] contacted the Coron[e]r’s office
for further explanation. The Chief Inves[t]igator of the Coroner’s Office
confirmed in a telephone conversation that the Coroner’s Office cannot by law
speculate what the time of death may have been, but can only indicate the date
and time of when the decedent’s body was observed and pronounced. The
Autopsy was performed at 10:10 am on March 18th at which time the body was in
full rigor, concluding that Mr. McGinn had been deceased for quite some time.36

32

R. Doc. No. 38-10, at 22 (identified as M-0202).
R. Doc. No. 38-10, at 22 (identified as M-0202).
34
R. Doc. No. 38-10, at 22 (identified as M-0202).
35
R. Doc. No. 38-10, at 22 (identified as M-0202).
36
R. Doc. No. 38-10, at 25 (identified as M-0205).
33

9

Accordingly, MetLife affirmed its denial of accidental death benefits based on the intoxication
exclusion.37
As stated above, factual determinations “are always reviewed for abuse of discretion.”
Vercher, 379 F.3d at 226. MetLife’s decision to deny benefits must be upheld by this Court if it
is “‘based on evidence, even if disputable, that clearly supports the basis for its denial.’” Lain,
279 F.3d at 342 (quoting Vega, 188 F.3d at 299). If MetLife’s decision to deny plaintiff’s claim
for accidental death benefits is supported by “‘some concrete evidence in the administrative
record,’” then MetLife did not abuse its discretion. Id. (quoting Vega, 188 F.3d at 302). This
Court cannot substitute its judgment for that of the plan administrator. McDonald, 361 F. App’x
at 608.
Based on the facts presented in the administrative record, the Court finds that MetLife did
not abuse its discretion. MetLife’s conclusion that decedent’s intoxication contributed to his
death is supported by Dr. Del Valle’s report, which is a piece of “concrete evidence” that
“clearly supports the basis for its denial.” See Lain, 279 F.3d at 342. Furthermore, Dr.
Kravitsky’s report and opinion are undermined by their reliance on the time of death listed on the
coroner’s report, which clearly corresponds with the time that decedent’s body was discovered
and which the Coroner’s office stated was not representative of an actual time of death.38

37

R. Doc. No. 38-10, at 25 (identified as M-0205).
Plaintiff objects that the Coroner’s office’s statement should not be considered by the Court
because it is inadmissible hearsay. R. Doc. No. 39-1, at 2. However, an ERISA “administrator is
not a court. It is not bound by the rules of evidence.” Karr v. Nat’l Asbestos Workers Pension
Fund, 150 F.3d 812, 814 (7th Cir. 1998) (citing Pierre v. Conn. Gen. Life Ins. Co./ Life Ins. Co.
of N. Am., 932 F.2d 1552, 1562 (5th Cir. 1991)). Hearsay evidence may be considered by an
ERISA administrator, but “by itself, hearsay evidence cannot support a plan administrator’s
finding unless the evidence ‘meet[s] certain indicia of reliability.’” Truitt v. Unum Life Ins. Co.
of Am., 729 F.3d 497, 511 (5th Cir. 2013) (quoting Pierre, 932 F.2d at 1562-63).
In this case, the alleged hearsay statements were made directly to MetLife in response to
MetLife’s inquiry, and the statement is corroborated by Dr. Del Valle’s opinion, indicating the
38

10

Plaintiff asserts that MetLife “ignored and rejected the documented evidence and other
medical evidence that was submitted by public records.”39 However, as detailed above, the Court
finds that MetLife considered the evidence presented by plaintiff, including the Coroner’s report.
To the extent that plaintiff would draw a different conclusion from those records,40 such an
argument is immaterial because there is “‘evidence, even if disputable, that clearly supports the
basis for its denial.’” Lain, 279 F.3d at 342 (emphasis added) (quoting Vega, 188 F.3d at 299).
MetLife has rejected plaintiff’s assertion that “[t]he lack of medical treatment is an interceding
accident and is separate and apart and is not related to alcohol,”41 and the Court finds that doing
so was not an abuse of discretion.
Plaintiff also reasserts her contention that the claims process was fundamentally unfair
because the same person, Marie O’Dell, allegedly handled plaintiff’s claim at all stages of
review,42 and plaintiff asserts that “the adjuster/administrator will not admit making a mistake

alleged hearsay’s reliability. See Pierre, 932 F.2d at 1563; R. Doc. No. 38-10, at 25 (identified as
M-0205). Moreover, even without the Coroner’s office statement, the Court would still find that
MetLife did not abuse its discretion because its decision was supported by other “concrete
evidence,” such as Dr. Del Valle’s report.
39
R. Doc. No. 38-1, at 6; see also R. Doc. No. 38-1, at 11
40
Plaintiff also asserts, “A public record cannot be refuted absent [an] allegation of fraud or by
[a] recant[ing] Affidavit of the coroner or police report.” R. Doc. No. 38-1, at 10. However,
plaintiff provides no authority in support of this statement, and plaintiff’s contention that
MetLife should have obtained affidavits from the Coroner and other investigators is similarly
unsupported. See R. Doc. No. 38-1, at 10-11.
41
R. Doc. No. 38-1, at 13.
42
See, e.g., R. Doc. No. 47, at 2 (“This writer has never seen such an absurd scenario and
Defendant has not provided any case that exists to this Court showing any Court ever at any time
allow[ing] such an abuse of due process. . . . [T]his Court has to question bias, prejudice, and
fairness in this process and in applying discretionary standards.”); see also, e.g., R. Doc. No.
38-1, at 6 (“The Court does not want to hear again how Defendant defies logic for due process
and fairness to be melted [sic] out by Ms. O’Dell who denied the original claim as adjuster and
then acted as administrator and supported her previous flawed decision and denied the claim on
appeal.”).
11

and therefore will always support its decision and deny all appeals as done here.”43 Plaintiff
already raised this issue in connection with its first motion for summary judgment and, as the
Court stated in its July 10, 2014 order and reasons, “plaintiff’s due process argument ‘is both
legally and factually inaccurate.’”44
Plaintiff has not provided any new arguments or cited any authority that was not
previously considered by the Court. Moreover, plaintiff’s assertions are factually inaccurate
because, as MetLife notes, “the original denial of the claim for Accidental Death benefits was
not handled by Ms. O’Dell.”45 Although such information was not previously in this Court’s
record, the undisputed administrative record reflects that Ms. O’Dell was not assigned to the
original review of plaintiff’s claim.46 Accordingly, plaintiff’s contention is without merit.
CONCLUSION
For the foregoing reasons,
IT IS ORDERED that plaintiff’s motion is DENIED and defendant’s motion is
GRANTED.
IT IS FURTHER ORDERED that all of plaintiff’s claims in the above-captioned matter
are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, September 8, 2014.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
43

R. Doc. No. 39-1, at 2.
R. Doc. No. 32, at 13 (quoting Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 598 (5th
Cir. 1994)).
45
R. Doc. No. 43, at 3-4.
46
R. Doc. No. 38-9, at 21 (identified as M-0171); see also R. Doc. No. 38-14, at 10 (identified
as M-0308).
44

12