JOHNSON v. AMERICAN UNITED LIFE INSURANCE COMPANY
Filing
33
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 03/12/2012. IT IS THEREFORE ORDERED that Plaintiff's Motion for Summary Judgment (Docket Entry 20 ) is DENIED and that Defendant's Motion for Summary Judgment (Docket Entry 18 ) is GRANTED.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANGELA JOHNSON,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
AMERICAN UNITED LIFE
INSURANCE COMPANY,
Defendant.
1:09CV37
MEMORANDUM OPINION AND ORDER
AULD, Magistrate Judge
Plaintiff, Angela Johnson, brought this action to recover
benefits against Defendant, American United Life Insurance Company,
pursuant to the Employee Retirement Income Security Act (“ERISA”),
29 U.S.C. § 1132(1)(B).
Plaintiff
contends
(Docket Entry 1 at 1.)
Defendant
wrongfully
denied
Specifically,
her
claim
to
accidental death payments as the beneficiary of her late husband’s
employer-based group insurance policies.
(Id. at 1-4.)
The
parties have filed cross-motions for summary judgment (Docket
Entries 18 and 20), which both involve questions regarding whether
the single-car crash that resulted in the death of Plaintiff’s
husband qualifies as an “accident” under the relevant policies.
For
the
reasons
that
follow,
Plaintiff’s
Motion
for
Summary
Judgment (Docket Entry 20) will be denied and Defendant’s Motion
for Summary Judgment (Docket Entry 18) will be granted.1
FACTS2
The Insurance Policies
Plaintiff’s
late
husband,
Richard
Andrew
Johnson
II,
participated in an employee welfare benefit plan through his
employer.
(Docket Entry 19 at 1; Docket Entry 21 at 2.)
Said
employer contracted with Defendant to provide certain insurance
benefits
in
connection
with
that
plan.
(Id.)
Under
this
arrangement, in the event of the death of a participating employee
(such as Mr. Johnson), Defendant agreed to pay the employee’s
beneficiary (here, Plaintiff) life insurance proceeds and a further
payment for accidental death, subject to certain terms.
(Id.)
1
The parties agreed to disposition by a United States
Magistrate Judge under 28 U.S.C. § 636(c)(1). (Docket Entry 30.)
2
The facts recited herein reflect matters not disputed by the
parties. In support of their respective summary judgment motions,
the parties each attached as exhibits to their principal briefs
identical, Bates-stamped copies of the “Administrative Record”
compiled by Defendant in connection with Plaintiff’s claim for
benefits.
(Docket Entry 19, Ex. A; Docket Entry 21, Ex. A.)
Plaintiff previously had stipulated “that the disposition of this
action will be based solely on the administrative record.” (Docket
Entry 15 at 1.)
For clarity, parenthetical citations to the
Administrative Record use the convention “AR#” (with # referring to
the Bates-stamp number on the cited page(s)). Several documents
appear more than once in the Administrative Record. For example,
Mr. Johnson’s employer-paid policy appears at AR 110-45, as well as
AR 322-57, and his employee-paid policy (which contains many, but
not entirely, overlapping provisions) appears at both AR 147-208
and 359-420. Citations herein generally correspond to the first
location of the cited document(s) within the Administrative Record.
-2-
Through his employment, Mr. Johnson acquired two distinct
policies insured by Defendant:
(1) an employer-paid policy (in
effect from 2006) that provided $25,000 in life insurance proceeds
and $25,000 as an accidental death payment (AR 110-453); and (2) an
employee-paid policy (in effect from 2003) that allotted $100,000
for life insurance and $100,000 for accidental death (AR 147-2084).
Under
the
heading
“SECTION
12
–
ACCIDENTAL
DEATH
AND
DISMEMBERMENT BENEFIT,” both policies contain this language:
If a Person has an accident while insured under this
policy which results in a loss shown below, [Defendant]
will pay the amount shown opposite the loss if:
1) the loss occurs within 90 days from the date of the
accident; and
2) [Defendant] receives acceptable proof of loss.
FOR ACCIDENTAL LOSS OF
Life
AMOUNT PAYABLE
Principal Sum
. . .
LIMITATIONS
Benefits are not
indirectly to:
payable
for
loss
due
directly
or
3
Said policy sets out three “Classes” of coverage with
differing payouts depending on the employee’s job. (AR 112, 114,
116.) At his death, Mr. Johnson fell in the class to which the
$25,000 benefit figure(s) applied. (AR 259.)
4
Said policy does not document the dollar figures elected by
Mr. Johnson for life insurance proceeds and accidental death
payment, but other documents confirm that he opted for coverage of
$100,000 as to each. (AR 259, 311.)
-3-
1) suicide or attempted suicide, whether sane or insane;
2) air travel as a crew member;
3) participation in a riot or from war or an act of war,
whether declared or undeclared;
4) commission of an assault or felony;
5) the voluntary taking of:
a) a prescription drug in a manner other than as
prescribed by a physician;
b) any other federallysubstance in an unlawful manner;
or
state-controlled
c) non-prescription medicine, in a manner other than
as indicated in the printed instructions; or
d) poison, except accidental ptomaine poisoning;
6) the voluntary inhaling
occupational accident); or
of
gas
(unless
due
to
7) sickness other than infection occurring as a result of
accidental injury.
-4-
(AR 132-33 (emphasis added); AR 176-77 (emphasis added).)5
Another page of “Section 12” within both policies states
(under the sub-heading “DEFINITIONS”):
“ACCIDENTAL DEATH means
death due to an accident, directly and independently of all other
causes.”
(AR 131; AR 175.)
defines “accident.”
The parties agree that neither policy
(Docket Entry 19 at 4; Docket Entry 21 at 8.)
“Section 12” of the employee-paid policy contains a page
absent from “Section 12” of the employer-paid policy; it states:
BENEFIT
[Defendant] will pay an additional accidental death
benefit, called the Seat Belt Benefit, if a person dies
5
The employee-paid policy uses periods after numerals rather
than closed parentheses and has an “or” after “Limitation” seven
(not six), followed by this language (absent from the employer-paid
policy):
“8. participation in hang-gliding, bungee-jumping,
automobile racing, motorcycle racing, skydiving, rock climbing, or
mountain climbing.” (AR 177.) The employee-paid policy alone has
this “SECTION 14 – SUICIDE LIMITATION”:
LIMITATION: If the Person commits suicide, while sane or
insane:
1.
within two (2) years from the effective date of
Personal Insurance, the benefits payable will be
limited to the premiums paid; or
2.
two (2) or more years after effective date of
Personal Insurance, but within two (2) years of the
effective date of an increase in the amount of
coverage previously obtained, the benefits payable
will be limited to the coverage obtained prior to
the effective date of the increase, if any, plus
the premiums paid for the increased coverage.
(AR 181.)
-5-
as a result of an Automobile accident while properly
wearing a Seat Belt at the time of the accident. . . .
LIMITATION
This benefit will not be paid if the
operating the Automobile, was legally
defined by applicable laws, violating
racing, stunt-driving, or engaging in
activity during the accident.
Person, while
intoxicated as
traffic laws,
other similar
In addition to the above limitation, this benefit is
subject to the further limitations and provisions of this
[Accidental Death and Dismemberment] section.
(AR 178.)
Both the employer- and employee-paid policies contain this
clause: “CONFORMITY WITH STATE LAWS: Any provision of this [/the]
policy in conflict with the laws of the state in which it is
delivered is amended to conform to the minimum requirements of
those laws.”
(AR 139; AR 202.)
Mr. Johnson resided in North
Carolina and his employer was located there.
(AR 99, 321.)
Finally,
do
the
parties
agree
that
the
policies
not
grant
discretionary authority over benefit determinations to Defendant.
(Docket Entry 19 at 9; Docket Entry 21 at 6.)
The Insured’s Death
A “South Carolina Traffic Collision Report Form” reflects
that, at 1:48 a.m., on August 2, 2007, a South Carolina Highway
Patrol trooper was “[n]otified” of an incident along southbound
United States Highway 17 near North Myrtle Beach.
(AR 100.)
The
trooper arrived at the scene eight minutes later and found that,
-6-
about the time of the dispatch, a pickup truck had “traveled off
the roadway, struck a highway sign, and overturned several times.”
(AR 100.)6
The trooper discovered Mr. Johnson, the driver and sole
occupant, partially ejected from the truck and fatally injured.
(AR 100-01.)
Mr. Johnson had not employed a seat belt.
(AR 101.)
According to the form, Mr. Johnson “was traveling too fast for
conditions,” with an “Estimated Speed” of 65 miles per hour in an
area with a “Speed Limit” of 50 miles per hour.
to
[i]mpact,”
[a]head.”
the
(AR 101.)
truck
was
moving
(AR 100.)
“[e]ssentially
“Prior
[s]traight
The trooper reported the “Weather Condition”
as “Clear (no adverse conditions),” the “Light Condition” as “Dark
(Street Lamp Lit),” and the “Road Surface Condition” as “Dry.”
(Id.) He identified “Driving Too Fast for Conditions” and “Ran off
Road” as “Contributing Factors.”
(Id.)
The truck, which belonged
to Mr. Johnson’s employer, incurred $20,000.00 in damage.
100.)
(AR
The traffic sign, property of the South Carolina Department
of Transportation, received damage assessed at $500.00.
(Id.)
The Horry County Coroner completed a “State of South Carolina,
Department of Health and Environmental Control, Certificate of
Death” as to Mr. Johnson.
(AR 99.)
6
It confirms that Mr. Johnson
The truck veered slightly rightward from its lane of travel
off the highway. (AR 100-01.) The trooper described the highway
from which the truck departed as: “Two-way, Divided, Unprotected
Median.” (AR 101). The truck left the highway in a section of
road characterized as: “Curve - On Grade.” (Id.)
-7-
was “pronounced dead” on August 2, 2007, at 1:58 a.m., that he was
“Dead on Arrival” at the hospital, and that the “Place of Death”
was “car wreck/road.”
(Id.)
Under the heading “Cause of Death,”
the Certificate of Death identifies “Internal Injuries” as the
“Immediate Cause (Final disease or condition resulting in death)”
and “MVA” as a condition “leading to” the Immediate Cause.
(Id.)
It further states “Victim lost control of vehicle, striking pole”
under the heading “Describe How Injury Occurred.”
(Id.)
A “South Carolina Law Enforcement Division, Forensic Services
Laboratory Report” dated September 11, 2007, reflects that the
Horry County Coroner submitted “Blood” and “Ocular fluid” from Mr.
Johnson
for
a
toxicology
examination
in
connection
with
the
incident on August 2, 2007. (AR 92-93.) Said examination revealed
that Mr. Johnson’s blood had an “Ethanol” level of .289% weight/
volume and his ocular fluid had an “Ethanol” level of .311% weight/
volume.
(Id.)
The report lists “Negative” findings as to the
other ten substances for which examination occurred.
(Id.)
The Benefit Claims Process
Mr. Johnson’s employer made a timely insurance claim for
Plaintiff. (AR 83.) Defendant promptly paid Plaintiff $125,000 in
life insurance proceeds from Mr. Johnson’s policies.
(AR 96-97.)
On October 9, 2007, however, Defendant informed Plaintiff that:
Based upon the police and medical reports provided to
[Defendant], [Mr.] Johnson had a sufficient quantity of
intoxicants in his system to make him lose control of his
-8-
mental and physical faculties at the time of his fatal
collision. Therefore, benefits are not payable under the
accidental death and dismemberment provisions of the
policy.
(AR 80-81.)7
In support of this position, the letter specifically
references reports by the American Medical Association and the
National Highway Traffic Safety Administration documenting the
negative effect alcohol consumption has upon driver performance,
including the fact that “there is serious deterioration at [a blood
alcohol (‘BAC’) level of] .08 . . . [and] [a]s BAC increases, the
degree of impairment also rises dramatically.”
(AR 80.)8
7
The letter also addresses the “Seat Belt Benefit” in Section
12 of the employee-paid policy, noting its limitation “if the
person, while operating the Automobile, was legally intoxicated as
defined by applicable laws,” and stating that “[n]o benefit is due
because Mr. Johnson was legally intoxicated as defined by South
Carolina law.” (AR 81.) South Carolina makes it a crime “for a
person to drive a motor vehicle within th[e] State while his
alcohol concentration is eight one-hundredths of one percent or
more.” S.C. Code Ann. § 56-5-2933(A).
8
The Administrative Record also contains a document from the
National Commission Against Drunk Driving bearing hand-written
marks around the descriptions of “BLOOD-ALCOHOL CONCENTRATION[S]”
of “0.18-0.30” and “0.25-0.40,” respectively denominated as the
“Confusion” and “Stupor” “STAGE[S] OF ALCOHOL INFLUENCE.”
(AR
277.) The “CLINICAL SIGNS/SYMPTOMS” listed for the former are:
(1) “Disorientation, mental confusion; dizziness”; (2) “Exaggerated
emotional states (fear, rage, grief, etc.)”; (3) “Disturbances of
vision (diplopia, etc.) and of perception of color, form, motion,
dimensions”; (4) “Increased pain threshold”; (5) “Increased
muscular incoordination; staggering gait; slurred speech”; and (6)
“Apathy, lethargy.”
(AR 277.)
The symptomology list for the
latter consists of:
(1) “General inertia; approaching loss of
motor functions”; (2) “Markedly decreased response to stimuli”; (3)
“Marked muscular incoordination; inability to stand or walk”; (4)
“Vomiting; incontinence of urine and feces”; and (5) “Impaired
consciousness; sleep or stupor.” (AR 277-78.)
-9-
Defendant
offered
“to
reevaluate
the
eligibility
for
Accidental Death and Dismemberment benefits,” if Plaintiff had
“documents that indicate a different result,” and advised Plaintiff
of her right to appeal the determination administratively.
81.)
(AR
Mr. Johnson’s employer then sent a letter to Defendant “to
appeal the decision to decline coverage of the Accidental Death and
Dismemberment benefit for [Mr.] Johnson . . . .”
(AR 73.)
As the
basis for the appeal, the letter asserts that “being intoxicated by
alcohol is not listed as a limitation under the AD&D benefit.
The
only reference to a limitation for legal intoxication appears on
the following page and appears to apply to the seat belt benefit
exclusively.”
(Id.)
The letter was copied to Plaintiff.
(Id.)
On December 14, 2007, Defendant sent a letter to Plaintiff
(copied to Mr. Johnson’s employer) that:
(1) states Defendant
found the employer’s letter deficient for lack of documentation;
(2) repeats and elaborates on the grounds stated in the initial
denial letter;9 (3) cites for the first time the limitation for
“loss due directly or indirectly to commission of an assault or
felony”; and (4) reiterates the options for reconsideration and/or
9
In this regard, Defendant cited an additional study from the
National Highway Traffic Safety Administration for the proposition
that “the typical effects experienced by a person with a BAC of .15
is [sic] less muscle control, vomiting, and major loss of balance.
The predictable effect on driving is substantial impairment in
vehicle control, attention to driving task, and in necessary visual
and auditory information processing.” (AR 68.)
-10-
appeal. (AR 67-72.) Two months later, counsel for Plaintiff wrote
to Defendant to appeal the benefits determination.
(AR 59-60.)
Plaintiff’s counsel subsequently expanded his legal arguments
challenging the denial of benefits, including as follows:
[Defendant] bases its decision on the fact that driving
under the influence of alcohol is not an accident. If
case law were relevant, the meaning of the word
“accident” is determined by the analysis set forth in
Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077
(1st Cir. 1990). Wickman says:
One must ask whether a reasonable person, with
background and characteristics similar to the
insured, would have viewed the injury as
highly likely to occur as a result of the
insured’s intentional conduct.
Id. at 1088.
. . . The only thing that is highly likely to occur as
a result of the insured’s conduct, is that one will be
arrested for drinking and driving. Therefore, if case
law were relevant, Mr. Johnson’s death still would have
been accidental pursuant to his life insurance policy
because the probability of arrest greatly outweighs the
probability of death.
(AR 29.)
Via further exchange of letters, Plaintiff’s administrative
appeals were exhausted (AR 12-14, 19-25) and Defendant issued its
final decision declining to pay accidental death benefits (AR 3-8).
The final decision letter repeats Defendant’s initial rationale and
references the previously-cited studies. (AR 4-6.) Further, as it
had in prior exchanges with Plaintiff’s counsel (see, e.g., AR 1920),
Defendant
explained
its
determination
-11-
by
reference
to
decisions employing the “Wickman standard,” including Eckelberry v.
Reliastar Life Ins. Co., 469 F.3d 340 (4th Cir. 2006).
(AR 3-4.)10
As part of that explanation, Defendant stated:
The record in this case establishes that [Mr. Johnson]
broke the law by driving with a blood-alcohol level more
than three times the legal limit, knowing his drunk and
severely impaired driving created a significant risk of
bodily harm or death to others and to himself, and the
precautions which would eliminate or reduce this risk
(e.g., taking a taxi, or staying at a nearby hotel or
with a friend) involved burdens so slight relative to the
magnitude of the risk as to demonstrate [Mr. Johnson’s]
indifference to the risk.
(AR 4.)11
This litigation followed.
DISCUSSION
As the parties note (Docket Entry 19 at 8-9; Docket Entry 21
at 5-6), because the policies at issue did not reserve decision-
10
As noted above, Plaintiff’s counsel also had asserted that
application of Wickman’s analytical model supported Plaintiff’s
position. (See AR 29.)
11
Elsewhere in the letter, Defendant went further, asserting
that Mr. Johnson’s “traveling off the roadway, striking a sign, and
overturning the vehicle causing over $20,500 in damages was a
voluntary and intentional act and thus not accidental.”
(AR 6
(emphasis added).) In other places, however, Defendant indicated
that the crash was reasonably foreseeable, rather than intended.
(AR 6-8.)
Finally, Defendant developed its position that the
“assault or felony” limitation foreclosed accidental death benefits
as follows: “[R]eports indicate [Mr. Johnson] . . . caus[ed] over
$20,000 in damages to the vehicle and $500.00 in property damage.
The report does not indicate the vehicle or other property damaged
was owned by [Mr. Johnson] . . . [and thus his actions] would be
considered . . . [a] felony under South Carolina law . . . .” (AR
5.) Defendant continued to rely on this limitation in its brief
opposing Plaintiff’s summary judgment motion (see Docket Entry 23
at 14), but not its brief supporting its summary judgment motion
(see Docket Entry 19).
-12-
making
discretion
Defendant’s
for
refusal
Defendant,
to
pay
this
accidental
Court
death
reviews
de
benefits.
novo
See
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
“[C]ourts conducting de novo review of ERISA benefits claims should
review only the evidentiary record that was presented to the plan
administrator or trustee except where the district court finds that
additional evidence is necessary for resolution of the benefit
claim.”
Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017,
1026-27 (4th Cir. 1993).
Neither party seeks to produce more
evidence. (See Docket Entry 28 at 3 (citing Quesinberry in support
of joint motion to excuse pretrial filings).)
Indeed, Plaintiff
has stipulated “that the disposition of this action will be based
solely on the administrative record.”
(Docket Entry 15 at 1.)
“[When] applying the de novo standard of review . . ., the
issue is whether [the administrator] was correct in deciding [that
the claimant should not receive] benefits.”
Wilczynski v. Kemper
Nat’l Ins. Cos., 178 F.3d 933, 934-35 (7th Cir. 1999); accord Urso
v. Prudential Ins. Co. of Am., 532 F. Supp. 2d 292, 302 (D.N.H.
2008) (“De novo review requires the court to determine whether or
not the administrative decision was correct . . . .”); Andrus v.
AIG Life Ins. Co., 368 F. Supp. 2d 829, 832 (N.D. Ohio 2005)
(“Under a de novo review, my role is to determine whether the plan
administrator was correct in denying the plaintiff benefits.”).
Defendant contends it should receive summary judgment because it
-13-
properly determined that Mr. Johnson’s death failed to qualify as
a loss from an “accident” as required by the policies at issue.
(Docket Entry 19 at 1-2.)
Conversely, Plaintiff asserts that
Defendant wrongly denied the subject benefits because it employed
an improper definition of “accident.”
(Docket Entry 22 at 1-2.)
In this regard, Defendant focuses on what it describes as the
federal common law definition of “accident” adopted by Eckelberry
(Docket Entry 19 at 11-18), whereas Plaintiff seeks to define
“accident” by extracting portions of certain dictionary entries and
by relying on various canons of contract construction (rather than
relying on a Wickman-based analysis) (Docket Entry 21 at 8-14).
The Court concludes that, although the arguments and authorities
presented by the parties in pressing the foregoing points have some
significance in determining the meaning of “accident” in the
policies at issue, the Court first must analyze the inter-play
between ERISA and North Carolina law.
ERISA Preemption and N.C. Gen. Stat. § 58-3-30
This case turns on the meaning of the term “accident” in Mr.
Johnson’s policies.
As those policies’ “conformity with state
laws” clause recognizes, the delivery of said policies in North
Carolina requires their terms to conform to North Carolina law,
including
the
requirement
that,
for
all
“group
life,
group
accident, group health, and group accident and health insurance
policies” issued after October 1, 1989 (like these policies), the
-14-
terms “‘[a]ccident’, ‘accidental injury’, and ‘accidental means’
shall be defined to imply ‘result’ language and shall not include
words that establish an accidental means test.”
§ 58-3-30.
N.C. Gen. Stat.
If ERISA does not preempt § 58-3-30, said statute thus
controls the meaning of “accident” in Mr. Johnson’s policies.
“ERISA comprehensively regulates, among other things, employee
welfare benefit plans that, ‘through the purchase of insurance or
otherwise,’
provide
medical,
surgical,
or
hospital
care,
or
benefits in the event of sickness, accident, disability, or death.”
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44 (1987) (quoting 29
U.S.C. § 1002(1)). It contains “three provisions relating to [its]
pre-emptive effect . . . .”
Id.
The first declares that, “[i]f a
state law ‘relates to employee benefit plans,’ it is pre-empted.”
Id. at 45 (quoting 29 U.S.C. § 1144(a)) (internal brackets and
ellipses omitted). Secondly, however, “[t]he saving clause excepts
from the pre-emption clause laws that ‘regulate insurance.’”
Id.
(quoting 29 U.S.C. § 1144(b)(2)(A)) (internal brackets omitted).
Third, “[t]he deemer clause makes clear that a state law that
‘purports to regulate insurance’ cannot deem an employee benefit
plan to be an insurance company.”
Id. (internal brackets omitted)
(quoting 29 U.S.C. § 1144(b)(2)(B)).
This clause “exempt[s] self-
funded ERISA plans [distinguished from insurance-reliant plans]
from state laws that ‘regulate insurance’ within the meaning of the
saving clause.”
FMC Corp. v. Holliday, 498 U.S. 52, 61 (1990).
-15-
Neither party makes a case that ERISA preempts § 58-3-30.
Plaintiff primarily argues that the Court should define “accident”
via a “plain-meaning” analysis, but alternatively contends that
ERISA fails to preempt § 58-3-30, because: (1) § 58-3-30 regulates
insurance (and thus falls under ERISA’s saving clause); and (2) the
policies arose from an insured rather than a self-funded plan (such
that ERISA’s deemer clause does not apply).
(Docket Entry 21 at
14-15 (citing Bailey v. Metropolitan Life Ins. Co., No. 2:96CV719,
1997
U.S.
Dist.
(unpublished)).)12
LEXIS
19480
(M.D.N.C.
Oct.
3,
1997)
In response, Defendant offers this statement:
Arguably, N.C. Gen. Stat. § 58-3-30 is preempted by
ERISA,
as
it
is
unclear
whether
that
statute
substantially affects the risk pooling arrangement
between insurers and insureds.
See Kentucky Ass’n of
Health Plans, Inc. v. Miller, 538 U.S. 329, 338 (2003).
Plaintiff’s conclusory statement that § 58-3-30 is not
preempted is based on an old standard and entitled to no
weight. Regardless, because the Policy and [Defendant’s]
claim decision are in accord with the statute, the
preemption analysis is unnecessary in this case.
(Docket Entry 24 at 9 n.6 (parallel citation omitted) (emphasis
added).)
Such equivocal remarks do not present a colorable argument
that ERISA preempts § 58-3-30.
See White Tail Park, Inc. v.
Stroube, 413 F.3d 451, 462 (4th Cir. 2005) (“To the extent [the
plaintiff] argues the violation of its ‘right to privacy’ or a
12
Another of Plaintiff’s briefs mistakenly cites the first
party in Bailey as “Baker.” (See Docket Entry 22 at 18.)
-16-
liberty interest under the Fourteenth Amendment, it has failed to
develop that argument.
Accordingly, we affirm the order of the
district court dismissing [the plaintiff’s] claims . . . .”);
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“It is
not enough merely to mention a possible argument in the most
skeletal way . . . .
[A] litigant has an obligation to spell out
its arguments squarely and distinctly, or else forever hold its
peace.” (internal quotation marks omitted)); Nickelson v. Astrue,
No. 1:07CV783, 2009 WL 2243626, at *2 n.1 (M.D.N.C. July 27, 2009)
(unpublished)
(“[A]s
[the
plaintiff]
failed
to
develop
these
arguments in his Brief, the court will not address them.”).13
Moreover, a party asserting preemption bears the burden of
persuasion.
AT&T Corp. v. Public Util. Com’n of Tex., 373 F.3d
641, 645 (5th Cir. 2004) (citing Green v. Fund Asset Mgmt., L.P.,
245 F.3d 214, 230 (3d Cir. 2001))); accord Williams v. National
Football League, 582 F.3d 863, 880 (8th Cir. 2009).
failed
to
carry
this
burden
because
it
has
Defendant has
offered
only
a
conclusory suggestion that § 58-3-30 might fall outside ERISA’s
13
The portion of Kentucky Ass’n adverted to by Defendant
alters the test for whether a state law “regulate[s] insurance” for
purposes of ERISA’s saving clause (by focusing on the state law’s
affect on risk pool arrangements). In denying that ERISA preempted
§ 58-3-30, Plaintiff cited a case decided before Kentucky Ass’n
(hence, the objection that she relied “on an old standard”).
Because Defendant has failed to develop any argument to support its
equivocal suggestion that § 58-3-30 might fall outside the saving
clause, the Court declines to discuss these matters further.
-17-
saving clause. Given the absence of any showing of preemption, the
Court must look to § 58-3-30 to fix the definition of “accident” in
the policies at issue in this case.
See FMC Corp., 498 U.S. at 61.
The Meaning of “Accident” under N.C. Gen. Stat. § 58-3-30
Under North Carolina law, the term “‘Accident’ . . . shall be
defined to imply ‘result’ language and shall not include words that
establish an accidental means test.” N.C. Gen. Stat. § 58-3-30(b).
Said statute, however, does not identify the “‘result’ language” to
which it makes reference.
See id.
Neither have the parties cited
nor has the Court located any North Carolina state court decisions
explicating the term “‘result’ language” under § 58-3-30.14
Fifteen years ago, however, in a case with tragically similar
facts (i.e., an intoxicated insured’s death as the driver in a
single-car crash), this Court (per Judge William L. Osteen, Sr.)
examined that aspect of § 58-3-30 and explained that:
under a results test, if death is the unanticipated and
unexpected result of an intentional, voluntary act, then
the death is an accident. 46 C.J.S. Ins. § 863 at 4-6
(1993); 10 Couch on Insurance 2d § 41:29, at 1, 2 (1982).
The focus is on the unexpected consequences of voluntary
and intentional behavior, rather than on the means.
14
In construing § 58-3-30, this Court “must rule as the North
Carolina courts would, treating decisions of the Supreme Court of
North Carolina as binding, and departing from an intermediate
[state appellate] court’s fully reasoned holding as to state law
only if convinced that the state’s highest court would not follow
that holding.” Iodice v. United States, 289 F.3d 270, 275 (4th
Cir. 2002) (internal brackets and quotation marks omitted).
-18-
Bailey, 1997 U.S. Dist. LEXIS 19480, at *15 (emphasis added).
By
way of contrast, Judge Osteen, Sr. observed that:
Under an accidental means test, a death is not an
accident if it is caused by an insured’s intentional act
or is a foreseeable consequence of an insured’s voluntary
act. Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d
1077, 1085 (1st Cir. 1990).
“According to this
interpretation, if the act proximately leading to injury
is intentional, then so is the result, even if the result
itself was neither intended nor expected.”
Id.
The
focus is on the means that produce the result, rather
than on the result itself.
Bailey, 1997 U.S. Dist. LEXIS 19480, at *14-15 (emphasis added).
Given these definitions, Judge Osteen, Sr. determined that the
defendant “violated § 58-3-30 in ruling that [the insured’s] death
was not an accident under the terms of the Plan,” id. at *13,
[by] analyz[ing] [the beneficiary’s] claim in the
following
manner:
[The
insured]
voluntarily
and
intentionally consumed alcohol and became intoxicated; he
then voluntarily and intentionally drove his pick-up
truck
while
intoxicated;
death
is
a
reasonably
foreseeable result of driving while intoxicated; [the
insured’s] intoxication and driving while intoxicated
caused his death; thus, accident was not the “sole cause”
of death as is required under the Plan.
Id. at *15.
According to Judge Osteen, Sr.:
“This is precisely
the type of test that is proscribed by § 58-3-30 . . . [because it]
focused on the voluntary and intentional nature and foreseeable
consequences of [the insured’s] acts, instead of focusing on
whether he anticipated or expected the ultimate consequences of his
voluntary and intentional acts.”
Id. at *15-16.
-19-
After determining that the administrator failed to apply an
“accidental result” test required by § 58-3-30, however, Judge
Osteen, Sr.
declined
to
evaluate
the facts
under
the
proper
standard to decide if an “accident” had occurred (or to remand the
matter to the administrator for it to do so, as he might have done
given
that
the
plan
in
that
case
reserved
decision-making
discretion for the administrator); instead, Judge Osteen, Sr.
concluded
that,
even
if
the
crash
constituted
an
“accident”
otherwise triggering benefits, the administrator had the right to
refuse payment based on the policy’s separate exclusion for losses
“caused or contributed to by . . . injuring oneself on purpose,”
id. at *3.
See id. at 16 (“[T]he court need not address whether
[the insured’s] death was an ‘accident’ under § 58-3-30 because the
court finds that [the administrator] acted reasonably in finding
that
[the
insured]
injured
exclusion under the Plan.”).15
himself
on
purpose,
which
is
an
Given the lack of such an exclusion
in this case, this Court now must confront the question left open
in Bailey, i.e., did the instant intoxicated insured’s single-car
crash (which resulted in his loss of life) constitute an “accident”
under the “accidental result” test required by § 58-3-30.
15
Because the plan in Bailey granted the administrator
discretion to make benefits decisions, Judge Osteen, Sr. applied
abuse of discretion, rather than de novo, review (and thus focused
on the reasonableness not the correctness of the determination).
-20-
Moreover, because the parties have filed cross-motions for
summary judgment, the Court must address this question from two
different perspectives:
When faced with cross-motions for summary judgment, the
[C]ourt must review each motion separately on its own
merits to determine whether either of the parties
deserves judgment as a matter of law. When considering
each individual motion, the [C]ourt must take care to
resolve all factual disputes and any competing, rational
inferences in the light most favorable to the party
opposing that motion.
Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal
citations and quotation marks omitted)); accord, e.g., Boggs v.
Merck & Co., 84 Fed. Appx. 270, 271 (4th Cir. 2003) (following
Rossignol in ERISA case); HealthSouth Rehab. Hosp. v. American
Nat’l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996) (observing, in
ERISA case, that summary judgment movant “must negate any material
issue
of
fact”
and
“court
must
construe
all
inferences
and
ambiguities in favor of the nonmoving party”); Weaver v. Phoenix
Home Life Mut. Ins. Co., 990 F.2d 154, 157 (4th Cir. 1993) (same);
Robinson v. AIG Life Ins. Co., 725 F. Supp. 2d 564, 566, 572 (E.D.
Va. 2010) (following Rossignol in ERISA case); Piepenhagen v. Old
Dominion Freight Line, Inc. Emp. Benefits Plan, 640 F. Supp. 2d
778, 784 (W.D. Va. 2009) (same), aff’d, 395 Fed. Appx. 950 (4th
Cir. 2010); Williams v. Metropolitan Life Ins. Co., Inc., 632 F.
Supp. 2d 525, 537 (E.D.N.C. 2008) (describing summary judgment
standard in ERISA case, in relevant part, as follows: “[T]he court
-21-
must view the evidence and the inferences drawn from the evidence
in
the
light
most
favorable
to
the
nonmoving
party.
When
considering cross-motions for summary judgment, a court evaluates
each
motion
separately
using
the
standard
set
forth
above.”
(internal citations omitted)); Harvey v. Astra Merck Inc. Long Term
Disability Plan, 348 F. Supp. 2d 536, 540 (M.D.N.C. 2004) (stating,
in ERISA case, that, “[w]hen ruling on a summary judgment motion,
the Court ‘views the evidence in the light most favorable to the
non-moving party, granting that party the benefit of all reasonable
inferences’” (internal brackets omitted) (quoting Bailey v. Blue
Cross & Blue Shield of Va., 67 F.3d 53, 56 (4th Cir. 1995),
abrogation in part on other grounds recognized by Carden v. Aetna
Life Ins. Co., 559 F.3d 256, 260 (4th Cir. 2009))).16
16
One federal appeals court has taken the position that “[t]he
review utilized both by [a federal appeals] court and the district
court in [an] ERISA case [like this one] differs in one important
aspect from the review in an ordinary summary judgment case.”
Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir.
2005). Specifically, according to the First Circuit, “in an ERISA
case where review is based only on the administrative record before
the plan administrator and is an ultimate conclusion as to [an
award of benefits] to be drawn from the facts, summary judgment is
simply a vehicle for deciding the issue. This means the non-moving
party is not entitled to the usual inferences in its favor.” Id.
(internal citation omitted). This statement appears to conflict
with the First Circuit’s own prior precedent. See Allen v. Adage,
Inc., 967 F.2d 695, 699 (1st Cir. 1992) (“We subject the district
court’s summary judgment to plenary review, taking the record in
the light most congenial to the nonmovants and indulging all
reasonable inferences in their favor.
This standard applies
unreservedly in the ERISA context.” (internal citation omitted)).
Moreover, another federal appeals court has rejected the First
(continued...)
-22-
Plaintiff’s Summary Judgment Motion
According to Plaintiff, “[s]ummary judgment [in her favor] is
appropriate in this case because Mr. Johnson’s death is a covered
accident under a correct interpretation of the [p]olic[ies].”
(Docket Entry 21 at 5.) Because Plaintiff seeks benefits under the
policies, “the burden lies on [her] in the first instance to prove
that the loss is a ‘Covered Loss’ under the polic[ies],” Simpson v.
Chambers, No. 93-2462, 37 F.3d 1495 (table), 1994 WL 567901, at *2
(4th Cir. Oct. 18, 1994) (unpublished); see also Gallagher v.
Reliance Std. Life Ins. Co., 305 F.3d 264, 270-76 (4th Cir. 2002)
(indicating that claimant bears burden of showing entitlement to
ERISA plan benefits); Clark v. Metropolitan Life Ins. Co., 369 F.
Supp. 2d 770, 780 (E.D. Va. 2005) (“[T]he burden is on the claimant
to show that the death resulted from an accident . . . .”).
As the
policies at issue cover only losses resulting from “accidents,”
Plaintiff thus has the burden of proving that the crash in which
her husband died qualified as an “accident.”
Moreover, given that
§ 58-3-30 incorporates into the policies a definition of “accident”
based on the “accidental result” approach, Plaintiff must prove
16
(...continued)
Circuit’s foregoing ruling in Orndorf. See Patton v. MFS/Sun Life
Fin. Distribs., Inc., 480 F.3d 478, 484 n.3 (7th Cir. 2007). Under
these circumstances and in light of the above-cited decisions from
the Fourth Circuit and district courts in the Fourth Circuit
applying established summary judgment review standards in ERISA
cases, this Court will not follow Orndorf.
-23-
that the crash was “unanticipated and unexpected,” Bailey, 1997
U.S. Dist. LEXIS 19480, at *15.
In support of her summary judgment motion, Plaintiff fails to
point to any evidence in the record that would support such a
finding, let alone such evidence that, when taken in the light most
favorable to Defendant, would entitle Plaintiff to judgment as a
matter of law on that point.
Instead of identifying evidence that
would show Mr. Johnson did not anticipate or expect to crash,
Plaintiff makes a conclusory assertion, conflates the alleged
“accident” (i.e., the car crash) with the resulting “loss” (i.e.,
Mr. Johnson’s loss of life), and attempts to shift the burden of
proof, as follows:
“The evidence in the record demonstrates that
Mr. Johnson’s death was an accident the [sic] plain meaning of the
term. There is no evidence whatsoever that Mr. Johnson intended to
bring about his own death, nor is there any evidence that he
actually foresaw what would occur.”
(Docket Entry 21 at 9.)
Because, at a minimum, Plaintiff has the burden of proving
that Mr. Johnson did not anticipate or expect to crash, Plaintiff
lacks any entitlement to judgment, let alone summary judgment,
based on the alleged absence of evidence that Mr. Johnson did
anticipate or expect to die or, more accurately, to crash.
At
best, that approach would leave the case at equipoise, i.e., with
no evidence one way or the other about what Mr. Johnson anticipated
or expected and, as a result, Plaintiff’s summary judgment motion
-24-
must fail. See, e.g., Askanase v. Fatjo, Civil No. H-91-3140, 1993
WL 208440, at *7 (S.D. Tex. Apr. 22, 1993) (unpublished) (“[T]he
evidence on the issue [in question] is in equipoise.
Because [the
plaintiff] bears the burden of proof, and the controverted evidence
must be viewed and all reasonable doubts must be resolved in favor
of [the defendant], summary judgment is not warranted.”).
Examination
of
another
illustrates this point.
element
of
Plaintiff’s
claim
As Plaintiff notes, the policies at issue
require her to show that “the loss occur[red] within 90 days from
the date of the accident” (Docket Entry 21 at 8 (internal quotation
marks omitted)), but Defendant “does not dispute that the loss, Mr.
Johnson’s death, occurred within 90 days from the date of the
accident” (id.).
this
issue,
If, however, Defendant had refused to concede
could
Plaintiff
secure
summary
judgment
without
pointing to evidence that the loss occurred within 90 days of the
crash?
Could Plaintiff demonstrate an entitlement to judgment as
a matter of law simply by arguing that “there is no evidence
whatsoever” that the loss occurred other than 90 days after the
crash?
The answer to these questions is no, because Plaintiff has
the burden of proof as to that element of her claim.
Similarly, Plaintiff cannot obtain judgment, much less summary
judgment, by citing an alleged lack of evidence as to what her
husband did anticipate or expect because, under her own theory of
the case, she has the burden of proving that he did not anticipate
-25-
or expect to crash. Only upon Plaintiff’s identification of record
evidence
that
supported
the
view
that
Mr.
Johnson
did
not
anticipate or expect to crash would the alleged absence of contrary
evidence become important. In sum, because Plaintiff has failed to
point to
any
evidence
that
would
establish
what
her
husband
expected or anticipated when he drove a vehicle down a highway at
an unlawful speed while severely intoxicated, Plaintiff cannot
secure summary judgment on her claim that the loss at issue (i.e.,
her husband’s loss of life) resulted from an “accident” (i.e., an
“unexpected or unanticipated” crash).
As a result, the Court will
deny Plaintiff’s summary judgment motion.
Defendant’s Summary Judgment Motion
Defendant seeks summary judgment principally on the theory
that, “[i]n light of the well established federal common law
specifically adopted by the Fourth Circuit, a motorist’s death
resulting from an intentional, reckless decision to operate a motor
vehicle after consuming excessive amounts of alcohol is not an
‘accident’ as a matter of law.”
(Docket Entry 19 at 10.)
In this
regard, Defendant relies primarily on the Fourth Circuit’s decision
in Eckelberry. (Docket Entry 19 at 12-18 (discussing Eckelberry at
length and stating “[t]his case is controlled by and factually
indistinguishable from Eckelberry”).) For reasons that follow, the
Court declines to treat Eckelberry as dispositive of this case.
-26-
In Eckelberry, an ERISA-governed policy afforded benefits if
the
insured
suffered
death
or
a
specified
injury
due
to
an
“accident” (which the policy defined as something “‘unexpected’ and
[which] ‘the insured does not foresee’”).
provided
that
‘[the
administrator]
Id. at 342.
ha[d]
final
It “also
discretionary
authority to determine all questions of eligibility and status and
to
interpret
insurance.’”
and
Id.
construe the
terms
of
th[e]
policy(ies)
of
A policy beneficiary sought recovery when an
insured “died after his vehicle crashed into the back of a parked
tractor trailer.”
Id. at 341-42.
The administrator denied benefits, “reason[ing] that because
[the insured’s] blood-alcohol level was 50 percent higher than the
legal limit, he knowingly put himself at risk for serious injury or
death, and his injuries were therefore not ‘unexpected.’”
342.
Id. at
The beneficiary sued to overturn that decision, “argu[ing]
that [the] denial of benefits was unreasonable because, viewed
subjectively, [the insured] did not expect to crash, and because
serious injury was not ‘highly likely.’
.
.
.
and
grant[ed]
[the
The district court agreed
beneficiary’s]
motion
for
summary
judgment.” Id. The Fourth Circuit, however, reversed the district
court
“[b]ecause
[it]
conclude[d]
that
[the
administrator’s]
interpretation of ‘accident’ was not unreasonable . . . .”
Id.
In so doing, the Fourth Circuit emphasized that, given the
abuse of discretion standard applicable to judicial review of the
-27-
administrator’s decision (due to the reservation of discretion), it
would “not search for the best interpretation of [the] plan or even
for one [the Fourth Circuit] might independently adopt.”
343.
Instead,
it
interpretation,” id.
would
leave
standing
“any
Id. at
reasonable
The Fourth Circuit then turned to the term
“unexpected,” which it noted was undefined by the policy and, like
the
term
“accident”
itself,
“not
always
susceptible
to
easy
application,” id. According to the Fourth Circuit, because of this
difficulty, “many federal courts have adopted the framework laid
out in Wickman, to clarify the meaning of ‘unexpected.’”
Id.
(internal citation omitted).
The Fourth Circuit explained Wickman’s methodology as follows:
Initially,
the
court
asks
whether
the
insured
subjectively expected his actions to result in injury or
death. If the insured “did not expect an injury,” the
fact-finder must “examine whether the suppositions which
underlay that expectation were reasonable” and must do so
“from the perspective of the insured.” However, “if the
fact-finder, in attempting to accurately determine the
insured’s actual expectation, finds the evidence
insufficient to accurately determine the insured’s
subjective expectation, the fact-finder should then
engage in an objective analysis of the insured’s
expectations.” This “objective analysis” asks “whether
a reasonable person, with background and characteristics
similar to the insured, would have viewed the injury as
highly likely to occur as a result of the insured’s
intentional conduct.”
Id. (internal citations omitted) (quoting Wickman, 908 F.2d at
1088).
After noting that in a prior case (Baker v. Provident Life
& Accident Ins. Co., 171 F.3d 939, 942-43 (4th Cir. 1999)) the
-28-
Fourth Circuit had “suggested that it would apply Wickman’s test to
drunk driving collisions,” the Fourth Circuit proceeded to apply
Wickman to the case before it.
Id. at 343-44.
At the initial Wickman step, the Fourth Circuit determined
“there [wa]s no evidence in the administrative record from which
‘the
insured’s
determined.’”
a
result,
it
subjective
expectation’
can
be
‘accurately
Id. at 344 (quoting Wickman, 908 F.2d at 1088).
“proceed[ed]
to
the
‘objective
analysis,’
As
and
consider[ed] ‘whether a reasonable person, with background and
characteristics similar to the insured, would have viewed the
injury as highly likely to occur as a result of the insured’s
intentional conduct.’”
Id. (quoting Wickman, 908 F.2d at 1088).
In conducting that analysis, the Fourth Circuit took particular
note of the degree to which the insured’s blood-alcohol level
exceeded the legal limit (i.e., by 50%), the substantial, graduated
criminal penalties for drunk-driving, and the analogy between
driving drunk and playing Russian Roulette.
See id. at 345-46.
Ultimately, the Fourth Circuit arrived at these conclusions:
In sum, we are hard-pressed to say that a death must be
deemed accidental where a decedent voluntarily gets
behind the wheel after voluntarily drinking too much. By
choosing to drive under circumstances where his vision,
motor control, and judgment were likely to be impaired,
the insured placed himself and fellow motorists in harm’s
way. To characterize harm flowing from such behavior as
merely
“accidental”
diminishes
the
personal
responsibility that state laws and the rules of the road
require. This case, in short, affords us no basis for
-29-
concluding that [the administrator’s] denial of benefits
was unreasonable.
. . . .
We do not suggest that plan administrators can routinely
deny coverage to insureds who engage in purely negligent
conduct or, for example, to anyone that speeds. . . .
[A] comparison of those who drive drunk to those who
apply lipstick, fiddle with the radio dial, or restrain
a child is inapt.
While these actions are hardly
commendable driving habits, they do not generally rise to
the level of crimes.
Indeed, even though acts like
speeding and (in some jurisdictions) driving while
talking on a cellular phone are illegal, none compare to
driving while drunk, which has long been widely known and
widely publicized to be both illegal and highly
dangerous.
Although some courts have suggested that car crashes
caused by drunk driving can never be accidents, we cannot
anticipate every future set of circumstances and do not
adopt a per se rule. . . . Here, however, the undisputed
facts presented to the Plan administrator go a long way
toward establishing that the insured’s death was not
accidental.
We in no sense intend to make light of the loss that
plaintiff has suffered. We simply confirm as a matter of
law that the Plan administrator’s ruling was a reasonable
one under the policy as written. The insured’s conduct
went beyond the careless and imprudent.
Under the
circumstances here, we think it was reasonable for [the
Plan administrator] to conclude that because the insured
put himself in a position in which he should have known
serious injury or death could occur his death was not
unexpected.
Id. at 346-47 (emphasis added) (internal citations and quotation
marks omitted).
Strictly speaking, Eckelberry thus does not directly and/or
conclusively answer the question presented in this case, i.e.,
whether Mr. Johnson’s crash (which resulted in his loss of life)
-30-
failed to constitute an “accident” under the “accidental result”
test required by § 58-3-30, because it was not an “unanticipated
and unexpected result,” Bailey, 1997 U.S. Dist. LEXIS 19480, at
*15.
Specifically, Eckelberry establishes that, in the absence of
some unusual circumstance, the term “accident” (defined as an
“unexpected” event) reasonably may be construed as failing to
encompass a situation where a drunk driver crashes a car, but
Eckelberry does not pronounce that construction the only plausible
one, because that case came before the federal courts for abuse of
discretion, rather than de novo, review (due to the underlying
plan’s reservation of discretion for the administrator).
See
Eckelberry, 469 F.3d at 346-47; see also id. at 343 (noting that
applicable
review
did
not
require
determination
of
“best
interpretation of” the term “accident” under the plan “or even one
[the Fourth Circuit] might independently adopt”).
Given that the de novo standard applies in this case and that
§ 58-3-30 controls, this Court must take the further and different
step of deciding whether North Carolina courts would conclude that
the term “accident,” when viewed as adopting an “accidental result”
test pursuant to the mandate in § 58-3-30, stretches far enough to
reach Mr. Johnson’s crash. On the record of this case (and without
reference to the Wickman test), this Court says no.
As
standard
Judge
Osteen,
required
by
Sr.
§
explained,
58-3-30
-31-
the
defines
“accidental
an
“accident”
result”
as
an
“unanticipated and unexpected result of an intentional, voluntary
act,” Bailey, 1997 U.S. Dist. LEXIS 19480, at *15.
Where (as here)
an individual with an intoxication level approaching four times the
legal limit drives a car down a highway 30% above the speed limit,
a crash is in no commonly understood sense an “unanticipated and
unexpected result,” id., unless some unusual circumstance (absent
here) would make it so.
In other words, given the undisputed
record
such
evidence
“[d]isorientation,
that
mental
extreme
confusion
intoxication
[and]
causes
dizziness[,]
. . . [d]isturbances of vision . . . and of perception of color,
form, motion, [and] dimensions[,] . . . [i]ncreased [or marked]
muscular incoordination[,] . . . [a]pathy [and] lethargy . . .
approaching loss of motor functions[,] . . . [m]arkedly decreased
response to stimuli[, and] . . . sleep or stupor” (AR 277-78), a
crash by a driver so impaired while unlawfully speeding down a
highway constitutes an anticipated and expected result (and thus
not an “accident” within the meaning of § 58-3-30, again barring
some unique consideration not shown to exist in this case).17
17
Indeed, the record establishes that, even at approximately
half the level of intoxication as Mr. Johnson had, “[t]he
predictable effect on driving is substantial impairment in vehicle
control, attention to driving task, and in necessary visual and
auditory information processing” (AR 68) and that, as the level of
intoxication “increases, the degree of impairment also rises
dramatically” (AR 80 (emphasis added)). These considerations make
a crash by a speeding driver in Mr. Johnson’s condition as much an
anticipated and expected result as a bullet hitting the head of
someone who chooses to play Russian Roulette.
-32-
To avoid this conclusion, Plaintiff urges the Court:
(1) to
construe “accident” under Mr. Johnson’s policies as “something bad
that happens, unexpectedly, without the intention of the actor”
(Docket Entry 22 at 9); and (2) to refrain from “focus[ing] only on
the ‘unexpected’ portion of that definition” (id.).
Moreover,
Plaintiff asserts that she, not Defendant, should prevail as a
matter of law under her suggested approach because “[t]here is no
evidence, whatsoever, Mr. Johnson planned or intended the car
accident.
Presumably, he did not want to die.”
(Id.)
For at
least two reasons, this line of argument cannot save Plaintiff’s
claim from the entry of summary judgment in Defendant’s favor.
First, “[s]uch a standard critically changes the meaning of
the word ‘accident.’ Following such reasoning, any action short of
[attempted] suicide would have to be deemed an accident.” Mullaney
v. Aetna U.S. Healthcare, 103 F. Supp. 2d 486, 492 (D.R.I. 2000)
(upholding, on de novo review, denial of ERISA-covered benefits for
accidental death where insured with alcohol-intoxication over three
times legal limit crashed into tree while speeding).
Plaintiff
cited no authority for such a proposition and the Court found none.
Second, Plaintiff’s formulation would impose a burden on
Defendant
to
prove
what
Mr.
Johnson
expected
or
anticipated
regarding the prospect of a crash when, in fact, that burden lies
with Plaintiff.
See Gallagher, 305 F.3d at 270-76; Simpson, 1994
WL 567901, at *2; Clark, 369 F. Supp. 2d at 780.
-33-
Moreover,
Plaintiff’s discussion in this regard (like her brief in support of
her own summary judgment motion (Docket Entry 21)) lacks any
citation of any record evidence that, on the night in question, Mr.
Johnson did not anticipate or expect a crash to result from his act
of speeding down a highway while extremely intoxicated.
Docket Entry 22 at 9.)
(See
Nor does Plaintiff’s argument in this
regard offer any citation of authority for the assertion that the
Court should presume what state-of-mind Mr. Johnson had. (See id.)
In
the
face
of
Defendant’s
summary
judgment
motion,
Plaintiff’s failure to identify record evidence on a matter as to
which she bears the burden of proof warrants entry of summary
judgment in Defendant’s favor.
See, e.g., Emmett v. Johnson, 532
F.3d 291, 297 (4th Cir. 2008) (“The party opposing a properly
supported motion for summary judgment may not rest upon mere
allegations or denials of his pleading, but ‘must come forward with
specific facts showing that there is a genuine issue for trial.’”
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986))); Carr v. Deeds, 453 F.3d 593, 608 (4th Cir.
2006) (“[T]here is no burden upon ‘the party moving for summary
judgment to produce evidence showing the absence of a genuine issue
of material fact.’
Rather, ‘the burden on the moving party may be
discharged by “showing” – that is, pointing out to the district
court – that there is an absence of evidence to support the
nonmoving party’s case.’” (quoting Celotex Corp. v. Catrett, 477
-34-
U.S. 317, 325 (1986)) (internal emphasis omitted)); Francis v.
Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006)
(“Mere unsupported speculation is not sufficient to defeat a
summary judgment motion if the undisputed evidence indicates that
the other party should win as a matter of law.”).
As a final matter, Plaintiff contends that a failure to
include Mr.
Johnson’s
crash within
the
confines of
the term
“accident” as used in these policies “makes parts of the same
[p]olic[ies] contradictory or would require the Court to ignore or
construe certain terms [in the policies] as meaningless.”
Entry 22 at 10.)
(Docket
Specifically, Plaintiff asserts that:
[Defendant] agreed to pay “an additional accidental death
benefit, called the Seat Belt Benefit, if [Mr. Johnson]
die[d] as a result of an Automobile accident while
properly wearing a Seat Belt.” However, this Seat Belt
Benefit is subject to the explicit limitation that it
“will not be paid if [Mr. Johnson], while operating the
Automobile, was legally intoxicated as defined by
applicable laws during the event.”
The only useful
purpose that limitation can serve is to restrict what
Automobile accidents will lead to payment of the benefit.
If such events were not even “accidents” under the
polic[ies] to begin with, then there would be no need to
exclude them from the benefit because the benefit applies
only to “accidents.”
(Id. (quoting AR 178) (internal brackets, citations, and ellipses
omitted.)
This argument lacks merit because, by concluding that the term
“accident” (within the meaning of § 58-3-30) fails to encompass Mr.
Johnson’s crash, the Court has not construed “accident” to exclude
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every crash involving a driver with an intoxication level over the
legal limit.
To
the
contrary,
the
Court’s
conclusion
about
Plaintiff’s failure to carry her burden of showing that said crash
constituted an “accident” applies only to the undisputed facts of
this case.
On another record, e.g., one involving a driver with a
lower intoxication level that nonetheless exceeded the legal limit,
a car crash might fall within the definition of “accident” under
§ 58-3-30, such that the seat belt benefit’s legal intoxication
limitation would retain independent significance.18
CONCLUSION
Plaintiff has not shown a basis in the record for a finding
that the crash that resulted in her husband’s death qualifies as an
“accident” pursuant to the standards set by § 58-3-30 (which became
a part of the policies under which she seeks benefits).
18
Plaintiff further asserts that the existence of the legal
intoxication limitation as to the seat belt benefit “also shows
that, had [Defendant] desired to exclude coverage for accidents
during . . . legal intoxication, it knew how, and was able to do
so.”
(Docket Entry 22 at 10-11.)
“In essence, [P]laintiff
contends that [D]efendant’s failure to specifically exclude death
resulting from driving while intoxicated [from benefits generally]
implies that such an occurrence is covered . . . . That reasoning
is faulty. . . . Exclusion clauses limit the scope of the coverage
granted, but they do not in and of themselves grant coverage.
Thus, failure to exclude an act from coverage does not
automatically mean that the act is covered by the policy.”
Mullaney, 103 F. Supp. 2d at 494-95; accord Riddle v. Life Ins. Co.
of N. Am., Civil Action No. 11-1034(FLW), 2011 WL 4809037, at *7
(D.N.J. Oct. 11, 2011) (unpublished).
-36-
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary
Judgment (Docket Entry 20) is DENIED and that Defendant’s Motion
for Summary Judgment (Docket Entry 18) is GRANTED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 12, 2012
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