EBEL, Circuit Judge.
"Probably it is true to say that in the strictest sense and dealing with the region of physical nature there is no such thing as an accident. On the other hand, the average man is convinced that there is, and so certainly is the man who takes out a policy of accident insurance." Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. 491, 499, 54 S.Ct. 461, 78 L.Ed. 934 (1934) (Cardozo, J., dissenting) (quotations, citations omitted).
Plaintiffs Ronald and Sandra LaAsmar's adult son Mark had accidental death insurance as part of an employee benefit plan governed by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461. In this case, we must decide whether Mark LaAsmar's death, in a one-vehicle crash, was the result of an "accident" covered under the plan. Defendant Metropolitan Life Insurance Company ("MetLife"), the plan's administrator, denied the LaAsmars' claim for accidental death benefits because, at the time of the crash, Mark LaAsmar's blood alcohol level was almost three times the limit permitted under Colorado law. The district court overturned that decision. Having jurisdiction under 28 U.S.C. § 1291 and reviewing MetLife's denial of benefits de novo, we AFFIRM.
Mark LaAsmar began working for Phelps Dodge Corporation in January 2004. Through Defendant Phelps Dodge Corporation Life, Accidental Death and Dismemberment and Dependent Life Insurance Plan ("Plan"), LaAsmar obtained both life insurance and accidental death and dismemberment ("AD & D") coverage. The Plan contracted with Defendant Metropolitan Life Insurance Company ("MetLife") to provide these benefits; MetLife was also the Plan's claims administrator.
According to the terms of that Plan, Mark LaAsmar's AD & D insurance provided "additional security by paying [his] beneficiary a benefit in addition to life insurance if [he] die[d] as a result of an accident." (Aplt.App. at 81.) The accident had to be "the sole cause of the injury," "the sole cause of the covered loss," and "[t]he covered loss [had to] occur not more than one year after the date of the accident." (Id. at 82.)
In the early morning hours of July 25, 2004, LaAsmar died in a single-vehicle crash in Grand County, Colorado. His death certificate identified him as the "apparent driver" of the vehicle, a pickup truck owned by LaAsmar. (Id. at 179.) The vehicle's other occupant, Patrick O'hotto, also died in the crash. The Colorado State Patrol report on the incident indicated that, at the time of the crash, LaAsmar's truck was traveling sixty miles per hour on a straight two-lane rural road where the posted speed limit was forty miles per hour. The truck traveled off the right side of the road and rolled four and
Mark LaAsmar's parents, Plaintiffs Ronald and Sandra LaAsmar, were his beneficiaries. They filed a claim with MetLife for life and AD & D benefits. MetLife paid the LaAsmars life insurance benefits, but denied AD & D benefits for several reasons: 1) because Mark LaAsmar's extreme intoxication contributed to the crash, the motor vehicle "accident" was not the "sole cause" of his death; 2) because the crash was the reasonably foreseeable result of driving while intoxicated, it was not an "accident" covered under the Plan; and 3) these circumstances fell within the Plan's exclusion from AD & D coverage for a "loss caused by or contributed to by . . . [i]njuring oneself on purpose" (Aplt.App. at 83).
The LaAsmars then filed suit for breach of contract in Colorado state court, naming both the Plan and MetLife as defendants. Defendants removed the action to federal court, asserting ERISA preemption; the parties now agree that ERISA governs the lawsuit, and we therefore construe the LaAsmars' suit as a private civil enforcement action to recover benefits under a plan, pursuant to 29 U.S.C. § 1132(a)(1)(B).
In appeal No. 07-1267, MetLife and the Plan timely appeal the district court's order requiring that accidental death benefits be paid to the LaAsmars. The LaAsmars cross-appeal, No. 07-1286, from the district court's failure to rule on their requests for an award of attorney's fees and prejudgment interest.
II. AD & D BENEFITS
A. Standard of Review
We review summary judgment orders de novo, using the same standards applied by the district court. See Kellogg
"Like the district court, we must first determine the appropriate standard to be applied to [MetLife's] decision to deny benefits." Weber v. GE Group Life Assurance Co., 541 F.3d 1002, 1010 (10th Cir. 2008). We determine de novo what that standard should be. See Rasenack ex rel. Tribolet v. AIG Life Ins. Co., 585 F.3d 1311, 1315 (10th Cir.2009).
"[A] denial of benefits" covered by 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." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Where the plan gives the administrator discretionary authority, however, "we employ a deferential standard of review, asking only whether the denial of benefits was arbitrary and capricious." Weber, 541 F.3d at 1010 (internal citation, quotation omitted). Under this arbitrary-and-capricious standard, our "review is limited to determining whether the interpretation of the plan was reasonable and made in good faith." Kellogg, 549 F.3d at 825-26 (internal alterations, quotations omitted). As the party arguing for the more deferential standard of review, it is MetLife's burden to establish that this court should review its benefits decision at issue here under an arbitrary-and-capricious standard. See Gibbs ex rel. Estate of Gibbs v. CIGNA Corp., 440 F.3d 571, 575 (2d Cir.2006).
1. Whether procedural irregularities warrant de novo review
The district court held that the terms of the Plan did not delegate discretion to MetLife to make benefits decisions.
The LaAsmars filed their claims with MetLife on September 8, 2004, seeking life and AD & D benefits. MetLife initially denied the claim for AD & D benefits in a letter dated October 19, 2004.
The Plan explicitly provided that the LaAsmars could administratively appeal that decision to MetLife, giving them sixty days from the receipt of the initial denial to do so. The LaAsmars timely sought an administrative appeal with MetLife in a letter dated December 7, 2004.
The Plan further provided that, having received a request for an administrative appeal, MetLife "will review [the] claim
The Plan's sixty-day deadline for MetLife to decide the LaAsmars' administrative appeal stems from ERISA's requirement that, "[i]n accordance with regulations of the Secretary [of Labor], every employee benefit plan shall . . . afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim." 29 U.S.C. § 1133(2); see Aetna Health Inc. v. Davila, 542 U.S. 200, 220, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004). The Secretary's regulations implementing that "reasonable opportunity" for review obligation require, among other things, that "the plan administrator . . . notify a claimant . . . of the plan's benefit determination on review within a reasonable period of time, but not later than 60 days after receipt of the claimant's request for review by the plan." 29 C.F.R. § 2560.503-1(i)(1)(i) (2002).
In this case, however, MetLife did not decide the LaAsmars' administrative appeal until May 26, 2005, 170 days after they had sought review, or more than three times as long as permitted under the terms of the Plan and the ERISA regulations.
This court has on several occasions reviewed a benefits denial de novo, notwithstanding the fact that the Plan afforded the administrator discretion to make benefits determinations, where there were procedural irregularities in the administrator's consideration of the benefits claim. Applying an earlier version of 29 C.F.R. § 2560.503-1(h)(4) (1998), this court first applied de novo review based upon the insurer's breach of its duty to deliver a timely administrative decision in Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 631 (10th Cir.2003). In Gilbertson, the insurer never decided the claimant's administrative appeal. See id. at 628-29. Notwithstanding that fact and well after the expiration of the sixty-day time limit, the claimant filed suit under ERISA challenging the denial of her claim. See id. at 629-30. The claimant did so relying on the version of 29 C.F.R. § 2560.503-1(h)(4) in effect at that time, which provided that when an administrator's appeal decision was not timely furnished, the claim would be "deemed denied." Gilbertson, 328 F.3d at 629-30. In that case, despite the fact that the terms of the plan at issue vested the insurer with discretion to determine benefits, we reviewed the Plan's denial of benefits de novo because "the administrator's `deemed denied' decision [occurred] by operation of law rather than [by the administrator's] exercise of discretion." Id. at 631. Gilbertson, thus, held that "deferential review," where it was otherwise
The Secretary of Labor revised 29 C.F.R. § 2560.503-1, effective in 2002, and that revised version of this regulation applies here. The revision eliminated the "deemed denied" language and now the regulation instead provides that,
29 C.F.R. § 2560.503-1(1) (2002) (emphasis added). This regulation, like its predecessor, protects a claimant by insuring that the administrative appeals process does not go on indefinitely. See Gilbertson, 328 F.3d at 635-36.
Recently, this court, applying the revised 29 C.F.R. § 2560.503-1(1) but relying on the reasoning first expressed earlier in Gilbertson, employed a de novo standard of review in another case where the administrator never issued any decision on the claimant's administrative appeal. See Kellogg, 549 F.3d at 827-28. In Kellogg, this court applied a de novo standard of review under those circumstances, notwithstanding that the plan at issue vested "sole discretion" in the plan administrator to determine benefits eligibility. Id. at 826-28.
Unlike in Gilbertson and Kellogg, however, in this case MetLife did issue a decision denying the LaAsmars' administrative appeal, a decision to which this court potentially could defer; however, MetLife issued that decision in a belated manner. Under these circumstances, we still decline to apply a deferential standard of review; instead, we will review MetLife's benefits denial de novo.
The facts of our case are similar to those presented in Rasenack. In that case, we applied a de novo standard of review under the new version of 29 C.F.R. § 2560.503-1(l) (2002), even though the administrator eventually but belatedly issued a decision denying a claimant's administrative appeal, albeit after the claimant had already filed suit under ERISA. See Rasenack, 585 F.3d at 1314-18. Importantly, we noted that "[t]he relevant fact is that the administrator failed to `render a final decision within the temporal limits' prescribed by the Plan and ERISA." Id. at 1318 (quoting Gilbertson, 328 F.3d at 631; alteration omitted). In Rasenack, we further noted that
Id. at 1318 (quoting 29 U.S.C. § 1001(b)).
That same reasoning applies here. Although MetLife eventually denied the LaAsmars' claim on administrative review, it did so substantially outside the time period within which the Plan vested it with discretion to interpret and apply the Plan. Thus, it was not acting within the discretion provided by the Plan. See Gilbertson, 328 F.3d at 631.
Our conclusion is bolstered by the Department of Labor's indication, in revising § 2560.503-1(l), that it intended "to clarify that the procedural minimums of the regulation are essential to procedural fairness and that a decision made in the absence of the mandated procedural protections should not be entitled to any judicial deference." Pension and Welfare Benefits Administration, 65 Fed.Reg. 70246-01, 70255 (Nov. 21, 2000) (emphasis added).
2. Whether MetLife's substantial compliance with these procedural requirements permits it to avoid de novo review
MetLife argues that, despite these procedural irregularities, it substantially complied with the requirements for a timely administrative appeal. Under our earlier precedent applying the pre-2002 version of 29 C.F.R. § 2560.503-1, this court declined to apply "a hair-trigger rule" requiring de novo review whenever the plan administrator, vested with discretion, failed in any respect to comply with the procedures mandated by this regulation. See Finley, 379 F.3d at 1173. Instead, if this court concluded that the administrator's decision was in "substantial compliance" with ERISA deadlines, then, if otherwise warranted, we would still afford deference to the benefits decision. See id. at 1173-75 (applying deferential arbitrary-and-capricious standard of review notwithstanding that administrative appeal was
For these reasons, we will review MetLife's decision to deny the LaAsmars' claim for AD & D benefits de novo because MetLife failed to comply substantially with 29 C.F.R. § 2560.503-1(i)(1)(i)'s deadline for deciding a claimant's administrative appeal.
B. Whether MetLife erred in denying the LaAsmars' claim for AD & D benefits
We, thus, review de novo both the interpretation of the terms of the Plan and MetLife's decision to deny the LaAsmars accidental death benefits. See Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1250 (10th Cir.2007). It was the LaAsmars' burden to establish a covered loss. See Rasenack, 585 F.3d at 1319.
The AD & D Plan at issue here, like any insurance policy, is a contract, an agreement between the Plan and its participant. See Salisbury v. Hartford Life & Accident Co., 583 F.3d 1245, 1247 (10th Cir.2009). In interpreting that agreement,
In reviewing MetLife's decision to deny benefits, we are limited to considering only the rationale given by MetLife for that denial. See Kellogg, 549 F.3d at 828-29. We turn, then, to the three reasons why MetLife denied the LaAsmars' claim for AD & D benefits.
1. Whether the crash was the "sole cause" of Mark LaAsmar's death
The first reason that MetLife denied the LaAsmars' claim for AD & D benefits was because MetLife concluded that "the crash was not the sole cause of the loss," as required by the policy (Aplt. App. at 82). MetLife concluded that Mark LaAsmar's "extreme intoxicated state was a contributing factor." (Id. at 103-04.)
We rejected this same reasoning in Kellogg v. Metropolitan Life Insurance Co., 549 F.3d 818 (10th Cir.2008). In Kellogg, the insured was killed in a car wreck. See id. at 819-20. Based upon an eyewitness's testimony and the insured's prescription medications, it appeared that the wreck may have occurred because the insured had a seizure while driving. See id. at 819-21. Similar to the Plan at issue here, the plan in Kellogg, provided for AD & D benefits if the accident was "the Direct and Sole Cause of a Covered Loss ... mean[ing] 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." Id. at 821 (quotation omitted). But that plan excluded from AD & D coverage "any loss caused or contributed to by ... physical or mental illness or infirmity, or the diagnosis or treatment of such illness or infirmity." Id. (quotation omitted). In Kellogg, MetLife denied AD & D benefits because "[t]he decedent's physical illness, the seizure, was the cause of the crash." Id. at 823 (quotation omitted).
This court, reviewing the denial of benefits de novo, applying the "plain meaning" of the language of the plan, and construing the terms strictly against the insurer, reversed. See id. at 828-33.
Id. at 832-33 (citations, footnote omitted); see also Fought v. UNUM Life Ins. Co. of Am., 379 F.3d 997, 998-1000, 1009-10 (10th Cir.2004) (per curiam) (holding, on rehearing, that exclusion for disabilities caused by a pre-existing medical condition would not support denial of benefits caused by staph infection resulting from
Kellogg's reasoning applies here as well. Mark LaAsmar died, not of alcohol intoxication, but as a result of head and internal injuries suffered in a motor vehicle crash. The sole cause of the loss, Mark LaAsmar's death, was the crash.
2. Whether the crash was an "accident" as provided in the Plan
The second reason MetLife denied the LaAsmars AD & D benefits was because it concluded Mark LaAsmar's death was not the result of an "accident": "Here, the decedent's BAC was over two times the lawful limit. Driving while so impaired rendered the infliction of serious injury or death reasonably foreseeable and hence, not accidental as contemplated by the Plan." (Aplt.App. at 103.)
a. Declining to adopt a per se rule
As a starting point, the LaAsmars argue that MetLife erred by denying their AD & D claim based upon a blanket rule that all wrecks occurring while the driver has a BAC of approximately 2.8 times the legal limit is not an "accident." Courts have consistently rejected such a per se rule, as would we. See Stamp v. Metro. Life Ins. Co., 531 F.3d 84, 91 & n. 9 (1st Cir.) (rejecting "categorical determination that all alcohol-related deaths are per se accidental or nonaccidental"), cert. denied, ___ U.S. ___, 129 S.Ct. 636, 172 L.Ed.2d 639 (2008); Lennon v. Metro. Life Ins. Co., 504 F.3d 617, 621 (6th Cir.2007) (noting that "the extent of the risk" a drunk driver takes will "vary from case to case, depending on how intoxicated the driver is, how far he drives, how fast he drives, and how many other drivers and pedestrians are sharing the road with him") (quotation omitted) (opinion of Rogers, J.); Eckelberry v. Reliastar Life Ins. Co., 469 F.3d 340, 345, 347 (4th Cir.2006) (rejecting such a per se rule); Cozzie v. Metro. Life Ins. Co., 140 F.3d 1104, 1106, 1110 (7th Cir.1998) (affirming denial of AD & D benefits where insured died while driving drunk, but expressly not suggesting that insurer "could sustain a determination that all deaths that are causally related to the ingestion of alcohol ... could reasonably be construed as not accidental"); Danouvong ex rel. Estate of Danouvong v. Life Ins. Co. of N. Am., 659 F.Supp.2d 318, 326-27 (D.Conn.2009) (holding plan administrator's denial of benefits was arbitrary and capricious because the administrator in effect applied a per se rule treating all drunk driving deaths as non-accidental). MetLife's assertion, in its decision denying the LaAsmars' administrative appeal, that driving while as drunk as Mark LaAsmar was—almost three times the legal limit for BAC—makes serious injury or death reasonably foreseeable and thus not accidental, suggests that MetLife was applying such a per se rule based solely upon the degree of intoxication involved. We reject this interpretation of this AD & D policy.
b. Whether a reasonable person in Mark LaAsmar's position would have understood the term "accident," as used in this AD & D Plan, to cover the crash at issue here
We must determine, then, what the parties, in making an agreement for AD & D coverage, intended to include under the term "accident."
Judged in the context of the policy as a whole, see Weber, 541 F.3d at 1011, and speaking generally, a reasonable person in Mark LaAsmar's position would have understood from the language of the Plan that the term "accident" did not include any conduct intentionally causing a loss. And the fact that there might be an additional benefit paid for wearing a seat belt would suggest to a reasonable person that the standard AD & D benefits would be available, even if the plan participant did not take affirmative action to minimize the risks he undertook. Beyond those clues, derived from the plan's language, about what the parties intended "accident" to mean, however, we are left to determine what a reasonable person in Mark LaAsmar's position would have understood by the term "accident." Rasenack, 585 F.3d at 1318.
In making that determination, we must first consider whether that term as
Surely there can be no question in this case that the term "accident," as used in this Plan and as applied to this case, is ambiguous.
Because we are reviewing MetLife's denial of benefits de novo and because we conclude that the term "accident," as used in the Plan at issue in this case, is ambiguous, "[t]he doctrine of contra proferentem, which construes all ambiguities against the drafter, applies" here.
It is not too much to ask of ERISA insurers to set forth explicitly what is and is not an accident covered by their AD & D policy, and to state unambiguously whether death and disability caused by the insured's drunk driving is an accident and, if not, to include a workable definition of drunkenness and of causation attributed to such drunkenness. See Miller, 502 F.3d at 1254 (noting that "ERISA ... gives significant benefits to providers by preempting many state law causes of action which threaten considerably greater liability than that allowed by ERISA" in return for "promot[ing] the interests of employees and their beneficiaries in employee benefits plans and ... protect[ing] contractually defined benefits") (quotation, alterations omitted).
Id. at 1254-55 (quoting Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 540 (9th Cir.1990)).
Here, then, in determining whether the crash at issue in this case was an "accident," we consider the common and ordinary understanding of the word "accident," as a reasonable insured would understand the term, but in doing so we construe the meaning of that term in the LaAsmars' favor and against MetLife.
Under the terms of the Plan, at the non-accident end of the spectrum, we expect, without deciding, that a reasonable person would think the following were not "accidents": if the insured intentionally caused the crash;
At the other end of the spectrum, we expect, again without deciding, that a reasonable person would generally believe that an insured did die in an "accident" if he lost control of his vehicle while talking on a cell phone or moderately speeding or becoming distracted by children in the back seat. See Eckelberry, 469 F.3d at 347 (noting that, in upholding administrator's denial of AD & D benefits where insured died while driving drunk, court was not suggesting "that plan administrators can routinely deny coverage to insureds who engage in purely negligent conduct or, for example, to anyone that speeds"). To some degree, the language of the Plan at issue here providing for the possibility of additional benefits if the insured chose to wear a seat belt suggests that an insured's failure to take precautions against obvious dangers would not preclude AD & D benefits under this policy. Most people, in any event, would define accident to include many circumstances where a driver undertakes conduct that makes a crash more likely, such as driving when sleepy or when the weather is bad, talking on the cell phone, reaching for a compact disc, or turning to speak to a child while operating a vehicle. See Richmond, 32 Seattle U.L.Rev. at 85-86. Each of these volitional acts increases the probability of a wreck, some arguably to an even greater degree than driving drunk. See id. at 86 (commenting that a driver is more likely to have an accident if he is on his cell phone than if he is driving drunk); see also Kovach, 587 F.3d at 335-36. And yet, in each of these cases, reasonable people (and courts) generally consider a resulting wreck to be an "accident." See Richmond, 32 Seattle U.L.Rev. at 86 (noting that, although "[a]nother major contributor to vehicular crashes, `distracted driving,' may result from cellular phone use, eating, listening to music, or personal grooming while behind the wheel," and "[t]he dangers of distracted driving are obvious[,]... a court is unlikely to find that a distracted driver's death is anything other than accidental"); see also Kovach, 587 F.3d at 335-36. In fact, "[m]ost motor vehicle crashes are traceable to some failure of judgment that fully reveals its dangers only when it is too late. That is precisely why they are accidents." Richmond, 32 Seattle U.L.Rev. at 85 (quotation omitted). This is true even when a wreck is caused by an insured driver's arguably unlawful conduct, such as speeding or turning in front of oncoming traffic. See Eckelberry, 469 F.3d at 347; 10 Couch on Insurance § 139:13 (noting that "a large proportion of vehicular collisions involve the combination of an intentional act— turning, speeding, and so forth—with an unintended result—broadside collision, swerving and overturning, and so forth— yet are readily accepted as `accidents'"); see also Kovach, 587 F.3d at 333 (noting carelessness or negligence of insured in running a stop light did not make the ensuing wreck not an accident, notwithstanding insured's BAC of .148).
Somewhere in the middle of this spectrum of circumstances falls Mark LaAsmar's decision to drive home in the early morning darkness on two-lane country
Nor do we mean to suggest that drunk driving (or speeding or distracted driving) is not a concern. Certainly it is. But what we must address here is the parties' reasonable expectations of the scope of coverage for an "accident." Reviewing the question de novo and strictly construing the terms of the policy in the insured's favor, we hold that "accident," as used in the AD & D policy, extends coverage to an unintended death resulting from an vehicle crash where the driver had a blood alcohol content approximately 2.8 times the legal limit and where the vehicle was being driven approximately twenty miles an hour over the speed limit on a two-lane rural road at night. Said another way, to interpret
c. Rejecting parties' post hoc explanations for what they intended "accident" to mean
In reaching this conclusion, we reject the parties' proffered interpretations of the Plan. Instead of employing the common and ordinary understanding of the term "accident," MetLife, in denying the LaAsmars' claim for AD & D benefits, employed a "reasonable foreseeability" test, determining that Mark LaAsmar's BAC "rendered the infliction of serious injury or death reasonably foreseeable." (Aplt.App. at 103.) In applying this rule, MetLife cited to Wickman v. Northwestern National Insurance Co., 908 F.2d 1077 (1st Cir.1990). But there are several reasons why we reject MetLife's effort to substitute new language for the language the parties chose in the insurance contract.
First and foremost, the parties did not expressly state in the Plan that this was their understanding of the term "accident." See id. "Reasonable foreseeability," besides itself being ambiguous, injects a different spin to the analysis and, depending upon how broadly it is interpreted, could drastically reduce coverage under the AD & D policy since, particularly in hindsight, it could be said many accidents are foreseeable, even reasonably foreseeable, as opposed to unforeseeable.
Second, Wickman itself, upon which MetLife purports to rely, did not apply a reasonable foreseeability test, but instead asked whether the injuries or loss at issue was "highly likely to occur."
Third, the parties here could not have intended, at the time they agreed upon the AD & D coverage at issue here, that that coverage would not include any situation where a loss was reasonably foreseeable because a person purchases AD & D coverage exactly because something is reasonably foreseeable. See 10 Couch on Insurance § 139:11 (noting that "[t]he fact that injuries and death are `foreseeable' in a general manner is the very reason that people purchase insurance against accidents—no one who found a plane crash `unforeseeable' would purchase trip insurance"; further noting that "[a]lmost all adverse events are `foreseeable' in the abstract sense: being hit by a car while crossing the street, breaking a leg while skiing, dying from the effects of drugs (be they legal or illegal), even having a plane crash into your house"). Thus, MetLife's post hoc application of this "quite broad" reasonably foreseeable standard to determine what is and is not an accident under the Plan "frustrate[s] the legitimate expectations of plan participants, for insurance presumably is acquired to protect against injuries that are in some sense foreseeable." King v. Hartford Life & Accident Ins. Co., 414 F.3d 994, 1002 (8th Cir.2005) (en banc) (noting this possibility); see Kovach, 587 F.3d at 335 (noting the same);
Furthermore, the phrase "reasonably foreseeable" is a term often associated with the tort concept of negligence. Yet, for the reasons stated above, "recovery on an accident insurance policy is not defeated by the mere fact that ordinary negligence of the insured contributed to the occurrence of the accident, unless the policy expressly excepts the risk of accidents due to the negligence of the insured," which the Plan at issue here does not. 10 Couch on Insurance § 139:52; see also Kovach, 587 F.3d at 335. "[H]olding otherwise would, in the majority of cases, render accident policies of little value for the simple reason that the element of `carelessness' or `negligence' enters into most accidents." 10 Couch on Insurance § 139:52; see also Schuman, 44 Tort Trial & Ins. Prac. L.J. at 32 ("One of the chief goals of accident insurance is to protect insureds from the effects of their own acts. Even if an accident results because of the insured's own fault, the insured still expects to receive coverage. Otherwise, insurers could deny almost any claim under any accident insurance policy on the grounds that the insured contributed to the resulting accident. The insurer assumes the risk of the insured's negligence. Consequently, voluntary exposure to danger by the insured is not itself an excuse for avoiding liability.") (footnotes omitted). For this reason, too, a reasonable person in Mark LaAsmar's position could not have understood, at the time he agreed to this AD & D, that the term "accident" used in the Plan meant only those incidents where injuries or death were not reasonably foreseeable. See 10 Couch on Insurance § 139:15 (noting that "the concept of `reasonably unforeseeable' ... is essentially the concept employed in tort law to determine what actions are blameworthy as opposed to accidental, and is generally held inapplicable to determining whether a set of circumstances amounts to an accident for purposes of accident insurance"); see also id. §§ 139.23, 139.25; Schuman, 44 Tort Trial & Ins. Prac. L.J. at 35.
Lastly, even if we were to agree with MetLife's application of a reasonable foreseeability test, which we do not, there is nothing in the administrative record in this case that would support MetLife's assertion that, because Mark LaAsmar's driving with a BAC of "over two times the lawful limit" made "the infliction of serious injury or death reasonably foreseeable." (Aplt.App. at 103.) See West, 171 F.Supp.2d at 901, 903-04. The fact that driving drunk may increase the chances of
The First Circuit has indicated, instead, that it is not the statistical probability of death or serious injury that is relevant here, but rather "what a reasonable person would perceive to be the likely outcome of the intentional conduct," presumably that of driving while as impaired as the insured. Stamp, 531 F.3d at 92. Even so, there is still nothing in the administrative record developed in this case to suggest that a reasonable person would perceive that, if he drove with a BAC of.227, early in the morning on two-lane rural roads while speeding, that he would die.
For all of these reasons, we reject MetLife's application of a reasonable foreseeability test to determine whether Mark LaAsmar's crash was an "accident" for purposes of the AD & D Plan at issue here.
The LaAsmars, on the other hand, suggest that an event will not be an "accident" under the Plan only if it was "highly likely to occur," citing Wickman. But there is also no indication that the parties, at the time they entered into an agreement for AD & D coverage, intended or understood the term "accident" to mean that, either. MetLife did not draft the Plan using that language. Nor can we attribute this "highly likely" test to the plain and ordinary meaning of "accident." It is not even clear what "highly likely" means. See Kovach, 587 F.3d at 337 (suggesting "highly likely" is "a good bit more" than a 50% chance, and is perhaps a 75% chance); King, 414 F.3d at 1004 (suggesting that
Focusing only on the plain and ordinary meaning of the term "accident," then, as understood by a reasonable person in Mark LaAsmar's position at the time he agreed to MetLife's AD & D coverage, we conclude that Mark LaAsmar died in an "accident."
If MetLife wants to exclude from its AD & D coverage vehicle wrecks caused by its insured's drunk driving, it can certainly do so by drafting the language of its Plan clearly to say so. See Kovach, 587 F.3d at 336; see also Marjorie A. Shields, "Clause in Life, Accident, or Health Policy Excluding or Limiting Liability in Case of Insured's Use of Intoxicants or Narcotics," 100 A.L.R.5th 617 (2010) (collecting cases); 32 Appleman on Insurance 2d § 188.06[C] at 200-03 (1996) (discussing such exclusions); Richmond, 32 Seattle U.L.Rev. at 113-14 (same); Schuman, 44 Tort Trial & Ins. Prac. L.J. at 39-43, 61. "The sheer number of court cases nationwide involving disputes over claims by drunk drivers certainly would have put [MetLife] on notice that it would likely face claims under its AD & D policies based on injuries sustained in alcohol-related collisions." Kovach, 587 F.3d at 336. It is ultimately the insurer that must decide, and then clearly articulate, what its AD & D insurance will cover. See Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1457 (5th Cir.1995) (noting, after holding that insured's beneficiary was entitled to AD & D benefits, that "life insurance companies have ample ways to avoid judgments like this one"); see also 10 Couch on Insurance § 139:8 (noting that "[t]he parties to accident insurance contracts have the right and power to contract as to the accidents and risks for which the company shall and shall not be liable, subject to the restraints of public policy, and the courts may not make new or different contracts for them") (footnote omitted); id. § 139.33 (noting that "[p]rovisions of insurance policies excepting particular losses from the coverage thereof are ordinarily valid, for the parties to a contract of insurance have the right to limit or qualify the extent of the insurer's liability in any manner not inconsistent with statutory forms or provisions or contrary to public policy"). Moreover, if the insurer clearly and expressly addressed these matters in the terms of the plan, the insured would not have to guess at the
For all of the foregoing reasons, then, reviewing the Plan at issue here de novo and construing it strictly against MetLife, we conclude that a reasonable person in Mark LaAsmar's position would have understood the Plan's use of the term "accident" to include the crash in which he died.
3. Whether Mark LaAsmar's death fell within the exclusion of coverage for "injuring oneself on purpose"
Lastly, MetLife denied the LaAsmars AD & D benefits "based on the purposefully self-inflicted injury exclusion" (Aplt.App. at 104), apparently referring to the Plan's exclusion of AD & D coverage for "[i]njuring oneself on purpose" (id. at 83). MetLife deemed this exclusion to apply here because
(Id. at 104.)
MetLife had the burden of establishing that the loss fell within this exclusion from coverage. See Rasenack, 585 F.3d at 1319. It failed to meet that burden here.
There is, as we have already noted, no evidence in the record indicating that Mark LaAsmar intended to injure himself "on purpose" on the night of the wreck. See Kovach, 587 F.3d at 338-39 (rejecting argument that wreck occurring while insured was driving drunk fell within exclusion for "purposeful self-inflicted wound"); King, 414 F.3d at 1004 (rejecting argument that insured's "alcohol intoxication was itself an `intentionally self-inflicted injury'
MetLife has, therefore, failed to meet its burden of proving that this exclusion precludes the LaAsmars from recovering AD & D benefits. See Rasenack, 585 F.3d at 1319.
4. Conclusion as to the denial of AD & D benefits
For these reasons, we AFFIRM the district court's decision to overturn MetLife's denial of the LaAsmars' claim for AD & D benefits.
III. ATTORNEY'S FEES AND PREJUDGMENT INTEREST
In their cross-appeal, No. 07-1286, the LaAsmars argue that the district court abused its discretion in failing to rule at all on their requests for attorney's fees and prejudgment interest.
A. Attorney's fees
ERISA provides, in pertinent part that, "[i]n any action under this subchapter... by a ... beneficiary ..., the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. § 1132(g)(1). MetLife argues, however, that the LaAsmars failed to request attorney's fees in a proper manner. That is true.
Prior to the district court's decision on the merits of their case, the LaAsmars did request attorney's fees from the district court in several of their pleadings. Nevertheless, after the district court entered judgment on their behalf, the LaAsmars failed to follow the requirements of Fed. R.Civ.P. 54(d)(2) and the relevant local rule in seeking an award of attorney's fees. See West v. Local 710, Bhd. of Teamsters Pension Plan, 528 F.3d 1082, 1087 (8th Cir.2008) (applying Rule 54(d) to request for attorney's fees under ERISA's 29 U.S.C. § 1132(g)(1)); Bender v. Freed, 436 F.3d 747, 749-50 (7th Cir.2006) (same); Jones v. Central Bank, 161 F.3d 311, 312-13 (5th Cir.1998) (same). Rule 54(d)(2)(A) provides that "[a] claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages." In addition,
[u]nless a statute or a court order provides otherwise, the motion must:
Rule 54(d)(2)(D) also provides that, "[b]y local rule, the court may establish special procedures to resolve fee-related issues without extensive evidentiary hearings." The District of Colorado has established such a rule, providing that a Rule 54(d) motion for attorney's fees "shall include the following for each person for whom fees are claimed: 1. a detailed description of the services rendered, the amount of time spent, the hourly rate, and the total amount claimed; and 2. a summary of relevant qualifications and experience." D.C. Colo. L.Civ.R. 54.3(B). In addition, "[u]nless otherwise ordered by the court, a motion for attorney fees shall be supported by one or more affidavits." Id. 54.3(A).
Other than requesting attorney's fees in their pre-judgment pleadings, the LaAsmars failed to follow any of these other required procedures. Under these circumstances, the district court did not err in not addressing their request for fees. See Bender, 436 F.3d at 750 (affirming the district court's denial of an untimely Rule 54(d)(2)(B) motion for fees in an ERISA case); cf. Quigley v. Rosenthal, 427 F.3d 1232, 1236-38 (10th Cir.2005) (holding the district court did not abuse its discretion in denying attorney's fees because plaintiffs' Rule 54(d)(2) motion was untimely and they had failed to show excusable neglect that would justify extending the time they had to file such a motion).
B. Prejudgment interest
An award of prejudgment interest in an ERISA case is also within the district court's discretion. See Kellogg, 549 F.3d at 833; Weber, 541 F.3d at 1016. MetLife again argues that the LaAsmars waived their request for prejudgment interest by failing to pursue it in the district court. The LaAsmars did request prejudgment interest in the concluding paragraph of a response they filed to one of MetLife's motions, which was probably sufficient to raise the request, initially, before the district court. See Macsenti v. Becker, 237 F.3d 1223, 1245 (10th Cir.2001) (citing McNickle v. Bankers Life & Cas. Co., 888 F.2d 678, 681 (10th Cir.1989) (per curiam)).
After the district court entered final judgment in their favor, the LaAsmars filed a Motion for Extension of Time to File Motion to Alter or Amend Judgment. In that motion, the LaAsmars noted that the district court had never ruled on their request for prejudgment interest, but that the parties might be able to resolve the issue among themselves, making a motion to alter or amend unnecessary. Therefore, the LaAsmars requested that the district court grant them a two-week extension, until June 26, 2007, to file a motion to alter or amend. The district court did not rule on that extension-of-time request, and the LaAsmars never filed a motion to alter or amend. The parties, instead, filed the notices of appeal underlying the cross-appeals at issue here. Eventually, the district court, on October 1, 2007, denied the LaAsmars' motion for an extension of time to file a motion to alter or amend as moot because they never filed such a motion within the requested two-week extension period.
In light of this series of post-judgment events, the LaAsmars have waived any request for prejudgment interest. The
Because the LaAsmars failed to request an award of attorney's fees in a proper manner, the district court did not err in not addressing that request. Nor did the district court err in not addressing prejudgment interest.
For these reasons, we AFFIRM the district court's decision overturning MetLife's denial of the LaAsmars' claim for AD & D benefits. We decline to grant relief to the LaAsmars on their cross-appeal, and so DISMISS that cross-appeal.
BRISCOE, Chief Judge, concurring in part and dissenting in part.
I concur in part and dissent in part. Although I agree with much of the majority opinion, I disagree with Part II.B thereof, in which the majority discusses whether MetLife erred in denying the LaAsmars' claim for accidental death benefits. As I shall outline in greater detail below, Mark LaAsmar's death was not the result of an "accident," and I would thus reverse the decision of the district court and remand with directions to enter summary judgment in favor of defendants.
According to the Summary Plan Description (SPD), the triggering event for payment of "Accidental Injury Benefits" was the occurrence of an "accident." App. at 82. The SPD did not, however, define the terms "accident" or "accidental."
Because the Plan in this case "was established under ERISA, federal common law rules of contract interpretation" must be applied in determining the meaning of any undefined Plan term. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir.1997); see Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1249 (10th Cir. 2007). "[A]pplying federal common law,... the proper inquiry is not what [the Plan administrator] intended a term to signify; rather, we consider the `common and ordinary meaning as a reasonable person in the position of the [plan] participant... would have understood the words to mean.'" Miller, 502 F.3d at 1249 (quoting Admin. Comm. of Wal-Mart Assocs. Health & Welfare Plan v. Willard, 393 F.3d 1119, 1123 (10th Cir.2004) (internal quotation marks omitted)). Any ambiguities "must be construed against [the plan administrator] in accordance with the doctrine of contra proferentem." Id. at 1253 (italics in original).
The term "accident" is commonly and generally defined as "[a]nything that happens without foresight or expectation; an unusual event, which proceeds from some unknown cause, or is an unusual effect of a known cause; ... the unforeseen course of events." Oxford English Dictionary (2d ed.1989). Thus, as suggested by defendants, it is clear that the term, by common definition, necessarily indicates a lack of foreseeability on the part of the person involved in the accident. See Santaella, 123 F.3d at 462 ("[W]e treat the term `accidental' as it is commonly defined, as `unexpected or unintentional'"). Indeed, in determining "whether a certain result is accidental" in the context of a dispute involving insurance coverage, "`it is customary to look at the casualty [or injury] from the point of view of the insured.'" Id. (quoting Appleman, Insurance Law and Practice § 360, at 452-53 (1981)).
Having determined that we must examine the injury from the point of view of the
In my view, there are a host of reasons favoring adoption of the second, or middle, approach. To begin with, the first approach, though certainly the most favorable to the insured, has not been argued by the LaAsmars in this case, and has, as far as I can determine, only been adopted by a single federal district court. Further, the first approach appears problematic because it is often difficult or impossible to determine the subjective expectations of the insured, and even if the insured's subjective intent can be determined, the first approach could lead to wildly varying results in cases involving similar policies and circumstances. As for the third approach, not only has it failed to become widely adopted, it is most favorable to the defendants (who have not even argued in favor of the approach), and thus is contrary to the doctrine of contra proferentem. That leaves the second approach, which has been widely adopted in cases involving insurance contracts governed by ERISA, and could fairly be said to be the most rational and reasonable of the three approaches. See Padfield, 290 F.3d at 1127 (concluding "that the `substantially certain' test [wa]s the most appropriate one, for it best allows the objective inquiry to `serve  as a good proxy for actual expectation.'") (quoting Wickman, 908 F.2d at 1088).
That leaves the ultimate question of whether, applying the second approach to the circumstances presented in this case, Mark LaAsmar's death was "accidental." "[A]s is usually the case" in circumstances where the insured has died, the record
The autopsy performed on Mark LaAsmar indicated that his blood alcohol content (BAC) at the time of his death was 0.227g/100ml, an amount nearly three times greater than Colorado's legal blood alcohol limit of 0.08g/100ml. Other federal courts have, in similar circumstances, referred to readily available public information, including various on-line resources, regarding the effects of such a BAC level. E.g., Stamp v. Metro. Life Ins. Co., 531 F.3d 84, 90 (1st Cir.2008) (citing Nat'l Hwy. Traffic Safety Admin., U.S. Dep't of Transp., Setting Limits, Saving Lives: The Case for .08 BAC Laws, DOT HS 809 241, revised Apr. 2001). Consulting such resources in this case, there appears to be no question that a BAC level of 0.227g/100ml would have resulted in severe impairment of Mark LaAsmar's ability to drive and, correspondingly, would have substantially increased the likelihood of him crashing his vehicle while driving.
In light of such widely available and generally well-publicized data, it is clear that an objectively reasonable person in Mark LaAsmar's position would have viewed driving with a BAC of 0.22%, late at night on a two-lane county road, at sixty miles per hour in a forty mile-per-hour zone, and without a seat belt, as highly or substantially likely to result in serious injury or death.
Notably, federal courts performing this same type of analysis "have found with near universal accord that alcohol-related injuries and deaths are not `accidental' under insurance contracts governed by ERISA." Id. at 344 (citing cases). In doing so, "[t]hese courts have ... reasoned that since the hazards of drinking and driving are widely known and widely publicized the insured should have known that driving while intoxicated was highly likely to result in death or bodily harm." Id. at 345 (internal quotation marks omitted).
In reaching a different conclusion, the majority opinion states that "[m]ost people... would define accident to include many circumstances where a driver undertakes conduct that makes a crash more likely, such as driving when sleepy or when the weather is bad, talking on the cell phone, reaching for a compact disc, or turning to speak to a child while operating a vehicle." Maj. Op. 807. In turn, the majority opinion suggests that some "of these volitional acts increase[ ] the probability of a wreck... to an even greater degree than driving drunk." Id. Finally, the majority opinion asserts that "[s]omewhere in the middle of this spectrum of circumstances falls Mark LaAsmar's decision to drive home in the early morning darkness on two-lane country roads, with a BAC of .227 and going sixty miles an hour in a forty-mile-per-hour zone." Id. at 807-08. I strongly disagree with this analysis.
To begin with, the examples of driving-related conduct cited by the majority opinion are quite vague, and it is the precise circumstances of each case that, in the end, determine the foreseeability of the risk undertaken by a driver by engaging in a particular type of conduct. While I do not disagree that at least some of the general categories of causal conduct cited by the majority could reasonably be deemed "accidental," I submit that each of those categories involve far less of a risk of negative consequences than did the reckless conduct engaged in by Mark LaAsmar immediately prior to the crash that took his life.
Relatedly, I also reject the majority opinion's suggestion that driving while talking or texting on a cell phone "increases the probability of a wreck ... to an
Finally, I reject the majority opinion's assertion that "[s]omewhere in the middle of th[e] spectrum of circumstances [it has described] falls Mark LaAsmar's decision to drive home in the early morning darkness on two-lane country roads, with a BAC of .227 and going sixty miles an hour in a forty-mile-per-hour zone." Maj. Op. at 807-08. In my view, Mark LaAsmar's conduct falls at the far end of the spectrum described by the majority. More specifically, whereas most, if not all, of the examples of conduct listed by the majority could be classified as negligent, I believe that Mark LaAsmar's conduct was reckless or grossly negligent, e.g., Farmer v. Brennan, 511 U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ("The civil law generally calls a person reckless who acts or (if the person has a duty to act) fails to act in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known."), and indeed can be fairly compared to the majority opinion's earlier example of an "insured [who] died as a result of playing Russian roulette," Maj. Op. at 806.
In sum, I believe the majority opinion is wrong in affirming the district court's conclusion that Mark LaAsmar's death was "accidental" within the meaning of the Plan, and in turn affirming the grant of summary judgment in favor of the LaAsmars. I would reverse the judgment of the district court and remand with directions to enter summary judgment in favor of defendants.
We are reluctant to extend Finley because ERISA recognizes the value of an administrator's timely second look at a claim on administrative appeal, even if no new facts or legal arguments are advanced. Nevertheless, even accepting Finley, as we must, Finley is inapposite here because in this case the LaAsmars did raise significant new issues in their request for administrative review, including their arguments that their son was not driving at the time of the crash, that even if he was driving, there was no evidence that his intoxication caused the wreck, and that their AD & D claim should be analyzed under Wickman v. Northwestern National Insurance Co., 908 F.2d 1077 (1st Cir.1990).
10 Couch on Insurance § 139:10; see also Kovach, 587 F.3d at 336 (noting that insurer "could have easily added an exclusion in the Plan for driving while intoxicated had it wished to do so").