                   United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 03-2213
                                 ___________

Brandee K. Adams, Individually;       *
Jordan Adams, by and through her      *
Natural Mother, Legal Guardian and    *
Next Friend, Brandee K. Adams,        *
                                      *
            Appellants,               * Appeal from the United States
                                      * District Court for the
      v.                              * Western District of Missouri.
                                      *
Continental Casualty Company,         *
                                      *
            Appellee.                 *
                                 ___________

                           Submitted: November 20, 2003

                                Filed: April 20, 2004
                                 ___________

Before BYE, RICHARD S. ARNOLD, and SMITH, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

     Brandee K. Adams and Jordan Adams appeal the district court's1 summary
judgment for Continental Casualty Company ("Continental") in the Adamses's claim



      1
        The Honorable H. Dean Whipple, Chief Judge, United States District Court
for the Western District of Missouri.
for accidental-death benefits recoverable under an Employment Retirement Income
Security Act ("ERISA") plan administered by Continental. We affirm.

                                     I. Background
      On April 29, 2000, Michael Adams2 died while sports parachuting (skydiving).
The death certificate indicated that Michael died as a result of suffocation due to a
crushing injury to his larynx and trachea caused by a high-speed parachute landing
on a hard-dirt surface. Michael also sustained a fracture to his left femur at the knee.
The medics who found Michael performed cardiopulmonary resuscitation while
transporting him to the hospital. Michael was pronounced dead upon arrival. The
coroner's report indicated that the probable cause of Michael's death was suffocation
and cardiac arrest.

       On May 15, 2000, Brandee submitted a claim for the $300,000 in benefits
available under the accidental-death policy. Continental denied the initial claim based
on an exclusion in the policy. Brandee appealed the denial of the claim, and on July
18, 2000, Continental's Appeals Committee affirmed the denial based on the
exclusion. After filing this action, Brandee asked Continental to reconsider its
decision in light of additional materials she submitted. Continental reconsidered its
denial, but on November 8, 2001, concluded that the claim fell within the exclusion.
At this point, all administrative remedies were exhausted.

       The parties filed opposing motions for summary judgment. After determining
that the policy did not confer discretionary authority to Continental, the district court


      2
       Michael, age 29, was employed by J. B. Hunt Transport, Inc., and was insured
by an accidental death and dismemberment insurance policy provided through
Continental. The policy was in full force and effect on April 29, 2000.

                                          -2-
denied Brandee's motion for summary judgment and granted Continental's motion.
The district court first determined that the doctrine of contra proferentem did not
apply in ERISA cases in the Eighth Circuit. On the merits, the district court
determined that parachuting fell within the exclusion to the policy because Michael
was "riding in a vehicle or device for aerial navigation." Brandee appealed.

                                      II. Analysis
       Brandee argues that Michael's parachuting did not fall within the plan's
exclusion for certain activities related to air travel and, thus, she and Jordan are
entitled to benefits under the accidental-death policy.3 We review de novo a district
court's grant of summary judgment. Eide v. Grey Fox Technical Services Corp., 329
F.3d 600, 604 (8th Cir. 2003). The question before us is whether the record, when
viewed in the light most favorable to the non-moving party, shows that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322–323 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–250 (1986); Get
Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992); St. Paul Fire &
Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir. 1992). Where the unresolved
issues are primarily legal rather than factual, summary judgment is particularly
appropriate. Crain v. Bd. of Police Comm'rs, 920 F.2d 1402, 1405–1406 (8th Cir.
1990).


      3
         Brandee also argues that the district court erred in determining that Eighth
Circuit case law does not permit the court to apply the contra proferentem doctrine
of contract interpretation when an ambiguous term is at issue in an ERISA insurance
contract. She asserts that application of the doctrine here would require us to reverse
the district court's summary judgment. However, because we find that the applicable
policy provisions are unambiguous, we decline the invitation to address the issue in
this appeal.

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       The district court determined that the policy did not confer discretionary
authority on Continental to interpret the terms of the policy and, as such, the court
applied a de novo standard of review to interpret the policy. See Firestone Tire and
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (de novo standard applied when
ERISA-governed policy does not confer discretionary authority on administrator of
plan). When reviewing an ERISA plan de novo, we interpret the terms of the plan by
"giving the language its common and ordinary meaning as a reasonable person in the
position of the [plan] participant, not the actual participant, would have understood
the words to mean." Hughes v. 3M Retiree Med. Plan, 281 F.3d 786, 789–790 (8th
Cir. 2002) (citing Chiles v. Ceridian Corp., 95 F.3d 1505, 1511 (10th Cir. 1996)).

      Continental's policy provides "Air Travel Coverage" under the following terms:

      Air travel coverage under this policy is provided while riding as a
      passenger, and not as a pilot or crew member, in any aircraft being used
      for the transportation of passengers.


However, Continental denied coverage under the following exclusion:

      This policy does not cover any loss caused by or resulting from:

      1. Riding in any vehicle or device for aerial navigation, except as
      provided under "Air Travel Coverage"; . . . .

The policy does not define the various terms in either provision. Brandee argues that
a parachute is not a "vehicle or device for aerial navigation," or, at best, the terms are
ambiguous. She asserts that parachuting does not involve "navigation" as that term



                                           -4-
is normally understood because parachuting does not involve steering, and a
parachute is merely a conveyance used to slow the fall to Earth.

       First, we must determine the meaning of the words by "giving the language its
common and ordinary meaning as a reasonable person in the position of the [plan]
participant, not the actual participant, would have understood the words to mean."
Hughes, 281 F.3d at 789–790. Webster's Dictionary provides little guidance on
whether parachuting qualifies as "air travel" or "aerial navigation" or whether
participating in the sport results in one "riding in any vehicle or device for aerial
navigation."4 Therefore, we may look to extrinsic evidence to define the terms.

       We have not addressed this particular question in our case law. Other
jurisdictions appear to be evenly split as to whether parachuting or similar activities
are considered an activity involving "aerial navigation" or some other "aeronautical"




      4
         WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 33 (3d ed. 1993)
defines "aerial" as "of or belonging to the air or atmosphere," "of or relating to
aircraft," "designed for use in, taken from, or operating from or against aircraft," or
"by means of aircraft." It defines "navigation" in relevant part as "the act or practice
of navigating" or "the science or art of conducting ships or aircraft from one place to
another." Id. at 1509. Finally, it defines a "parachute" as a "device . . . for retarding
the speed of a body attached to it by offering resistance to the air and used esp. for
making a safe descent from an airplane . . . ." Id. at 1635.

                                          -5-
action.5 In Cabell, for example, the court described the mechanics of parachute flight
stating:

      It did not merely float or drift uncontrollably through the air, but was
      maneuverable to the extent that its direction, speed and rate of descent
      could be controlled with a considerable degree of accuracy. The fact that
      it had no power, except for the air, or that it could not travel upward or
      horizontally for great distances, is not significant. It could be
      maneuvered or directed through the air, and we think that the insurance
      policy and the insured must have contemplated that any device capable
      of doing that was a device for aerial navigation.


      5
         Cases holding that parachuting does not constitute "aerial navigation," and
is not excluded from coverage, include Triano v. State Farm Mut. Auto. Ins. Co., 565
So.2d 748 (Fla. App. Dist. 1990), and Childress v. Cont'l Cas. Co., 461 F. Supp. 704
(E.D. La. 1978), aff'd 587 F.2d 809 (5th Cir. 1979) (per curiam). In addition, some
courts have found coverage after determining that a parachute does not constitute an
"aircraft" as defined or applied in the policy. Clark v. Lonestar Life Ins. Co., 347
S.W.2d 290 (Tex. Civ. App. 1961); Hanover Ins. Co. v. Showalter, 561 N.E.2d 1230
(Ill. App. 1990); Engel v. Credit Life Ins. Co., 377 N.W.2d 342 (Mich. App. 1985).

       Cases holding that parachuting is an excluded activity under the policy because
it constitutes "aerial navigation" or "participating in aeronautics" include Edison v.
Reliable Life Ins. Co., 664 F.2d 1130 (9th Cir. 1981), Cabell v. World Serv. Life Ins.
Co., 599 S.W.2d 652 (Tex. Civ. App. 1980), Smith v. Mut. Benefit Health and
Accident Assoc., 258 P.2d 993 (Kan. 1953), and Stajnrajh v. Cont'l Cas. Co., 41 Pa.
D. & C. 2d 411 (Ct. Comm. Pl. Penn. 1966). In addition, some courts have
determined that other non-motorized conveyances, such as hang-gliders, are the type
of devices used for "aerial navigation" sufficient to deny coverage. See Fireman's
Fund American Life Ins. Co. v. Long, 251 S.E.2d 133 (Ga. App. 1978) (hang glider);
Deschler v. Fireman's Fund American Life Ins. Co., 663 P.2d 97 (Utah 1983)
(waterski kite).


                                         -6-
Cabell, 599 S.W.2d at 654. The court in Stajnrajh also reasoned that the parachutist
was the only person in charge and control of the parachute while making the jump.
These descriptions and reasoning comport with information Brandee included about
parachuting to support her argument that it is not a navigational activity. However,
the terminology used in the information implies that the parachuter, both before and
after deploying the parachute, has some control over his or her direction such that if
he or she wanted to set out in a particular direction, he or she could manipulate his
or her hands, body, or the chute's ropes and wings to achieve a change in direction.
This implies that parachuting involves "navigation." In addition, Brandee's
information includes such terms as "Piloting Techniques," which imply that the
parachuter has some navigational control.

       We interpret the policy exclusion to apply to Michael's parachuting. Michael
piloted or navigated the parachute, and the parachute itself is reasonably defined as
a "vehicle or device for aerial navigation." As such, we agree with the district court
that the exclusion encompassed Michael's activities and precluded coverage under the
ERISA policy.

       Finally, Brandee asserts two additional points. First, she argues that Michael
was not "riding in" a vehicle or device for aerial navigation because he was
suspended from–rather than being "in"–the parachute. We disagree. The construction
of a sports parachute includes more than the parachute wings themselves–instead, it
includes the ropes, harness, and other essential gear for securing the operator.
Certainly, Michael was "in" the harness as he jumped from the plane and descended
to the ground.




                                         -7-
       Second, Brandee argues that Michael's death was not necessarily the result of
parachuting as he could have tripped in the field, fallen on his altimeter, and caused
the injuries resulting in his death. However, the parties stipulated that Michael
suffocated from a crushing injury to his larynx and trachea and that the injury was
"due to a high-speed parachute landing." The plan exclusion provides, "[t]his policy
does not cover any loss caused by or resulting from" prohibited aerial navigation.
(Emphasis added.) Because we find that a parachute is a "vehicle or device for aerial
navigation" within the meaning of the exclusion, Michael's death "resulted from"
riding in the device. Smith, 258 P.2d at 997 (court rejected argument that impact, as
opposed to aerial descent, was proximate cause of injuries).

      For the foregoing reasons, we affirm the district court's summary judgment in
favor of Continental.
                      ______________________________




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