                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 12-4047
                       ___________________________

                                  Sean Nichols

                      lllllllllllllllllllll Plaintiff - Appellee

                                         v.

                 Unicare Life and Health Insurance Company

                           lllllllllllllllllllll Defendant

Acxiom Corporation Life and Accidental Death and Dismemberment Insurance Plan

                     lllllllllllllllllllll Defendant - Appellant
                        ___________________________

                               No. 13-1033
                       ___________________________

                                  Sean Nichols

                      lllllllllllllllllllll Plaintiff - Appellee

                                         v.

                 Unicare Life and Health Insurance Company

                     lllllllllllllllllllll Defendant - Appellant

Acxiom Corporation Life and Accidental Death and Dismemberment Insurance Plan

                           lllllllllllllllllllll Defendant
                                 ____________

                    Appeal from United States District Court
                for the Eastern District of Arkansas - Little Rock
                                 ____________

                         Submitted: September 25, 2013
                           Filed: January 16, 2014 (Corrected: January 16, 2014)
                                ____________

Before WOLLMAN, BEAM, and SMITH, Circuit Judges.
                          ____________

BEAM, Circuit Judge.

       UniCare Life and Health Insurance Company ("Unicare") appeals the district
court's1 grant of summary judgment in favor of Sean Nichols in this Employee
Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001 et seq. case. We affirm.

I.    BACKGROUND

      Nichols is the surviving spouse of Dana Nichols. Dana was employed by
Acxiom Corporation, and she was insured under the Acxiom Corporation Life and
Accidental Death and Dismemberment Insurance Plan (the "plan"). The plan is
funded by a policy underwritten by UniCare, and UniCare also serves as the claims
administrator.

      On May 3, 2010, Dana was found face down in bed, and upon being
transported to a nearby hospital, she was pronounced dead. The autopsy report


      1
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.

                                       -2-
indicated that her manner of death (natural, accidental, etc.) "could not be
determined," and her cause of death was mixed drug intoxication. The autopsy
reported that "[t]oxicology detected multiple drugs in the blood to include
citalopram/escitalopram, hydrocodone, oxycodone and loratadine. The atropine
detected is the result of terminal medical attention. No alcohol was detected." An
insurance record documenting Dana's prescription claims during the last twelve
months of her life show the following prescriptions and fill dates: Endocet 30-day
prescription last filled on April 27, 2010; Ambien 30-day prescription last filled on
April 3, 2010; levothyroxine, 30-day prescription last filled on April 3, 2010;
apap/codeine 2-day prescription last filled on December 29, 2009; diazepam 2-day
prescription last filled on December 29, 2009; and sertraline, 30-day prescription last
filled on October 12, 2009. Emergency personnel responding at the scene also
reported a prescription bottle for hydrocodone on the night stand with 12 pills
missing from it. As we read the administrative record, there is no information about
when this prescription was filled.2

      Nichols filed a claim for accidental death benefits under the plan. By letter
dated February 9, 2011, UniCare denied Nichols' claim, stating that because the cause
of death was listed as "could not be determined," it had "no choice" but to deny the
claim. Nichols filed an administrative appeal and supplemented the record (which
previously consisted only of the autopsy report) with medical and prescription
records, as well as letters from himself and Dana's parents, recounting her recent
medical problems and her social history. Nichols recounted that since Dana's March
2010 car accident, she had difficulty sleeping, and was prescribed Ambien. He noted
that while on Ambien, Dana had been sleepwalking throughout the house and would
even eat something and not remember it in the morning. Dana's mother recounted

      2
       The district court noted that Dana's March 2010 car accident had exacerbated
her back pain, and further observed that the insurer's list of medications in the
administrative record would not include prescriptions filled without a corresponding
medical insurance claim.

                                         -3-
that Dana was happily married with grown children; that Dana's son was newly
married; and Dana's daughter was set to begin nursing school. Dana's mother also
recounted that Dana was looking forward to a scheduled lap band surgery to assist her
with weight loss and ease her back pain from the car accidents and that she was
generally looking forward to the future. The letter from Dana's father reiterated
Nichols' statements about Dana's sleepwalking behavior while on Ambien and her
general good outlook for the future.

       By letter dated September 2, 2011, UniCare denied Nichols' appeal, this time
stating two reasons for the adverse decision: (1) the manner of death was listed on the
death certificate as "could not be determined," and (2) the plan excludes benefits for
death caused by intoxication. Nichols filed the instant action in district court
pursuant to ERISA. Upon Nichols' motion for summary judgment, the district court,
applying a de novo standard of review, found that Nichols was entitled to benefits
because the cause of Dana's death was more likely than not an accident. The district
court rejected UniCare's argument that its analysis of whether Dana's death was an
accident satisfied the standard set forth in Wickman v. Northwestern National
Insurance Co., 908 F.2d 1077 (1st Cir. 1990).

       UniCare argued to the district court that under Wickman, Dana's consumption
of numerous medications was an intentional act for which she would have
subjectively expected death to be a highly likely outcome. In this regard, UniCare
contended that since Dana had been consuming prescription medications for at least
a year, a reasonable interpretation of the evidence was that Dana had established a
tolerance to the medications she had been consuming in combination for years, and
that she must have taken more than the prescribed dosages on the date of her death.
The district court rejected this argument and noted that UniCare's analysis was flawed
because it "provides no indication that UniCare attempted to ascertain Dana Nichols's
subjective expectations or whether a reasonable person in her position would have
viewed her death as highly likely to occur." J.A. at 32.

                                         -4-
       With regard to the intoxication exclusion, the district court concluded that the
exclusion was not intended to cover Dana's situation. Because the plan defines
"intoxicated" as "legally intoxicated as determined by the laws of the jurisdiction
where the accident occurred," the district court found that a reasonable person in the
position of a plan participant would understand that the exclusion for intoxication
was intended to apply to death caused by committing acts, such as driving, while
intoxicated, not to situations where the immediate cause of death is ingestion of a
lethal mixture of prescription drugs. The district court cited Sheehan v. Guardian
Life Insurance Co., 372 F.3d 962, 967 (8th Cir. 2004) (finding that exclusion for loss
resulting from being under the influence of a controlled substance was "intended to
apply to death caused by, for example, driving while intoxicated, not to the accidental
ingestion of a controlled substance"), in support of its conclusion. J.A. at 33-34.

       UniCare appeals and argues that the standard of review should be abuse of
discretion; that the district court impermissibly shifted the burden from Nichols
having to prove entitlement to benefits to UniCare having to disprove Nichols'
entitlement; and that the district court erroneously concluded that the intoxication
exclusion did not preclude an award of accidental death benefits. UniCare also
challenges the $22,220 attorney fee awarded to Nichols.

II.   DISCUSSION

      A.     Standard of Review

      ERISA provides that an employee may bring a civil action to recover benefits
due to him under the terms of an employee welfare benefit plan. 29 U.S.C. §
1132(a)(1)(B). Although the statute does not specify the scope of judicial review
applicable to ERISA claims, in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
115 (1989), the Supreme Court held that a denial of benefits challenged under ERISA
is subject to de novo review unless the terms of the benefit plan give the plan

                                         -5-
administrator or fiduciary discretionary authority to determine eligibility for benefits
or to construe the terms of the plan. When a plan confers such discretionary
authority, the administrator's or fiduciary's decision is given deference and reviewed
under an abuse-of-discretion standard. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105,
111 (2008). However, when a conflict of interest exists because the plan
administrator is both the decision-maker and the insurer, "we take that conflict into
account and give it some weight in the abuse-of-discretion calculation." Carrow v.
Standard Ins. Co., 664 F.3d 1254, 1259 (8th Cir. 2012).

       The district court found that the plan did not confer discretionary authority on
UniCare as the plan did not contain the necessary discretionary language. The district
court focused on the language in the claims provisions, specifically the following:
"[a]ny benefits due under this plan shall be due once we have received proper, written
proof of loss, together with such reasonably necessary information we may require
to determine our obligation." We have previously found that similar language did not
confer discretionary authority on the administrator. See Rittenhouse v. UnitedHealth
Group Long Term Disability Ins. Plan, 476 F.3d 626, 629 (8th Cir. 2007) (noting that
policy language stating that benefits would be paid when "we determine that proof
. . . is satisfactory" was ambiguous and did not confer discretion on plan
administrator).

       UniCare, on the other hand, points us to Ferrari v. Teachers Insurance and
Annuity Ass'n, 278 F.3d 801 (8th Cir. 2002). In Ferrari, the claimant was initially
awarded disability benefits, and in order to keep receiving them on a long-term basis,
was required to submit written proof of continued total disability. We noted that the
plan language "that the employee must provide written proof of continued total
disability at reasonable intervals to be determined by TIAA and that such proof must
be satisfactory to TIAA" sufficiently conferred discretion on the administrator. Id.
at 806. UniCare argues that its plan has the same language, albeit in the section
addressing enrollment in the policy, not in the section addressing claims

                                          -6-
administration. UniCare contends that discretionary language anywhere in the plan
confers upon it the discretion necessary to obtain an abuse-of-discretion standard of
review for denial of claims. Nichols, on the other hand, contends that the
discretionary language must address claims administration or must grant general
discretion to construe plan terms in order for the plan to obtain an abuse-of-discretion
standard of review.

       We agree with Nichols that the plan does not grant UniCare discretion to
determine eligibility for benefits or to generally construe the terms of the plan.
Ferrari does not bear the weight UniCare places on it because the language from the
plan in that case gave the administrator the discretion to make decisions about
"continued total disability claims"–and the viability of a "continued total disability
claim" was the decision being challenged on appeal. Id. at 805-06. In the instant
case, the decision being challenged on appeal has nothing to do with Dana's
enrollment in the plan. The challenged decision is the administrator's denial of a
claim for accidental death benefits. The plan's language in the claims section, which
is lacking discretion-granting words according to our case law, see Rittenhouse, 476
F.3d at 629, is the most relevant. Nor is there a general grant of discretionary
authority to UniCare to construe all plan terms. Accordingly, we hold that the district
court correctly applied de novo review.3




      3
       Even if we were to hold that the plan granted UniCare discretion, the financial
conflict of interest that exists in this case would be taken into account, somewhat
ameliorating the abuse-of-discretion standard. See Carrow, 664 F.3d at 1259 (holding
that when a conflict of interest exists because the plan administrator is both the
decision-maker and the insurer, "we take that conflict into account and give it some
weight in the abuse-of-discretion calculation").

                                          -7-
      B.     Accidental Death Claim

       Nichols argues UniCare erred in denying his claim for accidental death benefits
with the stated rationale that the autopsy report listed the manner of death as "could
not be determined." Nichols submitted proof of his claim for accidental benefits in
the form of the death certificate, autopsy report, insurance medical records,
prescriptions records, and evidence relevant to Dana's state of mind, her relationships
with family, and an upcoming scheduled surgery.

       As noted, in front of the district court, UniCare advanced the Wickman test as
the vehicle for determining whether Dana's death was an accident, and asserted that
the facts of this case, as placed in the Wickman rubric, indicated that the incident was
not an accident. Under Wickman, an event is an accident if the decedent did not
subjectively expect to suffer "an injury similar in type or kind to that suffered" and
the suppositions underlying that expectation were reasonable. 908 F.2d at 1088.
"The determination of what suppositions are unreasonable should be made from the
perspective of the insured, allowing the insured a great deal of latitude and taking into
account the insured's personal characteristics and experiences." Id. If the evidence
is insufficient to determine the decedent's subjective expectation, the question is then
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.

       UniCare contends that there is insufficient subjective evidence of Dana's
expectations, and the objective evidence suggests that Dana's consumption of
numerous medications was an intentional act for which a reasonable person would
have expected death as the outcome. UniCare surmises that since Dana had been
taking this same combination of medications for several months, she became tolerant
to that level of medicine and subsequently took more than the prescribed dosage on
the night she died. UniCare argues that, objectively speaking, Dana would have

                                          -8-
viewed death as highly likely to occur in such a situation. This argument is strikingly
similar to the one made by the plan administrator/insurer in the recent case of
McClelland v. Life Insurance Company of North America, 679 F.3d 755 (8th Cir.
2012).

       In McClelland, under the deferential abuse-of-discretion standard of review,
we held that the insurance company erroneously denied accidental death benefits to
the widow of the insured decedent who died while driving a motorcycle at high
speeds with an elevated blood alcohol level. As "evidence" of the deceased's state of
mind, the insurance company offered that McClelland had been educated on the
dangers of drinking and driving and should have known that death was highly likely
to occur in his circumstances. We held that this reasoning was an abuse of the
insurer's discretion, and a misapplication of the agreed-upon standard set forth in
Wickman, because better and more concrete evidence of McClelland's subjective state
of mind on the morning of the accident (submitted in the form of affidavits from
family, friends and witnesses on the day of the accident), was that he had no intention
to die and certainly did not think death was likely to occur as he went on a social mid-
Saturday morning motorcycle ride. Id. at 760-61.

       Like the insurance company in McClelland, UniCare ignores the subjective
evidence submitted by Nichols, and instead makes leaps to get to the "objective"
conclusion it desires. There was no evidence in the record that Dana had developed
a tolerance to her medications or that she took all 12 of the missing hydrocodone pills
on the night of her death. No evidence suggests that Dana was suicidal. Similar to
the motorcycle driver in McClelland who had been successfully weaving in and out
of traffic at a high rate of speed for over six miles and therefore did not expect to die
that day, Dana had been taking this combination of prescribed medications, as
admitted by UniCare, for some period of time. There is no evidence whatsoever that
Dana intended to kill herself or thought it likely she would die on May 3, 2010. The
subjective evidence, in the form of letters and statements from her husband and

                                          -9-
parents, suggests otherwise. To the extent that her subjective mind set could still be
viewed as uncertain, the objective evidence tended to show that Dana had been
ingesting a combination of prescribed medication for some time, and under these
circumstances, a reasonable person with Dana's characteristics would not have
viewed death as highly likely to occur. Nor is there a medical determination that the
death was "not accidental" as alleged by UniCare. Dana's death falls squarely within
the meaning of accident, a word not otherwise defined in the policy, and as viewed
under the Wickman mandate to consider the situation from the "perspective of the
insured, allowing the insured a great deal of latitude and taking into account the
insured's personal characteristics and experiences." 908 F.2d at 1088. As the district
court aptly stated, "[i]n sum, all of the evidence indicates that Dana's death was the
unexpected result of ingesting prescribed medications."4 J.A. at 33. Accordingly, due
to all of the foregoing, we find that the district court correctly found that UniCare
erred in denying coverage for accidental death benefits.



      4
       Our conclusion is bolstered by the presumption against suicide that the
Eleventh Circuit has recognized in the context of an ERISA case, holding that "[b]oth
the negative presumption against suicide and the affirmative presumption of
accidental death" advance ERISA's goals of protecting the interests of plan
beneficiaries and uniformity in plan administration. Horton v. Reliance Standard Life
Ins. Co., 141 F.3d 1038, 1041 (11th Cir. 1998). The Horton court held that these
goals were furthered by providing "uniform rules to resolve coverage questions where
the evidence of how the insured died is inconclusive." Id. The court also noted that
a majority of states recognize the presumption against suicide, id., and Arkansas is
one of those states. See Wood v. Valley Forge Life Ins. Co., 478 F.3d 941, 947 (8th
Cir. 2007) (recognizing the Arkansas "strong" presumption against suicide). There
would be nothing remarkable about applying such a presumption in an uncertain-
cause-of-death ERISA case, as ERISA plan administrators are bound to follow federal
common law, as informed by state common law. Shipley v. Ark. Blue Cross & Blue
Shield, 333 F.3d 898, 902 (8th Cir. 2003). However, we need not even rely on the
presumption because as noted above, Nichols has met his burden to establish
entitlement to Dana's accidental death benefits.

                                        -10-
      C.     Intoxication Exclusion

       UniCare's final argument is that it can avoid paying benefits due to the plan's
intoxication exclusion. The exclusion states that no benefit will be paid for a death
that results from being intoxicated. "Intoxicated" is defined in the plan as "legally
intoxicated as determined by the laws of the jurisdiction where the accident
occurred." Because it is an exception to coverage, UniCare has the burden of proving
that the exclusion applies. Farley v. Benefit Trust Life Ins. Co., 979 F.2d 653, 658
(8th Cir. 1992). We agree with the district court that UniCare did not meet this
burden. Arkansas law defines intoxication with reference only to the public offenses
of drunk driving and public intoxication. Jones Truck Lines, Inc. v. Letsch, 436
S.W.2d 282, 284 (Ark. 1969). Dana's death involved neither. We view the common
and ordinary meaning of the policy language as a reasonable person in the position
of the plan participant would have understood the words to mean. Adams v. Cont'l
Cas. Co., 364 F.3d 952, 954 (8th Cir. 2004). A reasonable plan participant would
have understood that the plan's intoxication exclusion is intended to apply to death
caused by committing acts, such as driving, while intoxicated; not to situations where
the immediate cause of death is ingestion of a lethal mixture of drugs that have been
prescribed for use by the decedent. See Sheehan, 372 F.3d at 967 (finding that
exclusion for loss resulting from being under the influence of a controlled substance
was "intended to apply to death caused by, for example, driving while intoxicated, not
to the accidental ingestion of a controlled substance"). The district court correctly
found that UniCare had not proven that the exclusion should be used to deny
coverage.

      D.     Costs and Fees

       In a separate order, the district court awarded Nichols filing fees, prejudgment
interest and $22,220 in attorney fees. UniCare argues this was an abuse of the district
court's discretion. In deciding whether to award fees in ERISA cases, we are guided

                                         -11-
by the five factors set forth in Lawrence v. Westerhaus, 749 F.2d 494, 496 (8th Cir.
1984) (per curiam) ((1) degree of bad faith; (2) ability to pay; (3) deterrence; (4)
significance of the legal question; and (5) relative merits of the positions). The
district court's decision is reviewed for an abuse of discretion. Id. at 495. In
analyzing the factors, the district court found that a fee was warranted, and we find
that the district court did not abuse its discretion in so deciding. Further, the fee
awarded was reasonable.

III.   CONCLUSION

       We affirm the district court.
                       ______________________________




                                        -12-
