                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 03-2311



ROSANNE MOORE,

                                                Plaintiff - Appellee,

          versus


UNUM PROVIDENT CORPORATION,

                                               Defendant - Appellant.



                               No. 04-1044



ROSANNE MOORE,

                                                Plaintiff - Appellee,

          versus


UNUM PROVIDENT CORPORATION,

                                               Defendant - Appellant.



Appeals from the United States District Court for the District of
South Carolina, at Florence.    Terry L. Wooten, District Judge.
(CA-01-4185-4-25)


Argued:   September 29, 2004              Decided:   November 10, 2004
Before MICHAEL and MOTZ, Circuit Judges, and Roger W. TITUS, United
States District Judge for the District of Maryland, sitting by
designation.


Vacated in part, affirmed in part, and remanded by unpublished per
curiam opinion.


ARGUED: Theodore DuBose Willard, Jr., MONTGOMERY, PATTERSON, POTTS
& WILLARD, L.L.P., Columbia, South Carolina, for Appellant. Kevin
Mitchell Barth, HARWELL, BALLENGER & DEBERRY, Florence, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

           Unum Provident Corporation (Unum) appeals the district

court’s award of life insurance benefits and attorney’s fees to

Rosanne Moore in connection with her husband’s death. Mrs. Moore’s

suit for accidental death benefits under the Unum policy provided

by her employer is governed by the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq.    We vacate

the district court’s award of judgment to Mrs. Moore because the

court misapplied the standard for determining whether her husband’s

death was accidental.   The district court was correct, however, in

concluding that the evidence in the administrative record was

insufficient to establish that the policy’s controlled substances

provision applies.    Because the judgment in favor of Mrs. Moore is

being vacated, we also vacate her award of attorney’s fees.     The

case will be remanded for further proceedings consistent with this

opinion.

                                 I.

           On October 22, 1998, between 4:00 and 4:30 a.m., William

E. Moore (Moore) entered the home of his girlfriend, Lisa McFerrin,

without permission.     Moore, who was carrying a pistol, went to

McFerrin’s bedroom where he found her and her invited guest, Jerry

Sayles. An altercation between Moore and Sayles ensued, and Sayles

wrested the gun from Moore and beat him with it.    Moore died from

cardiac arrhythmia due to the stress of the beating.   A toxicology


                                  3
report     revealed   that     Moore   was   under      the    influence    of

methamphetamine at the time of his death.

            Moore’s wife, Rosanne Moore (Mrs. Moore), had insurance

coverage for accidental injury or death under a policy maintained

by her employer.      Moore, her husband, was a covered spouse under

the policy.     The policy covered losses, including loss of life,

that “result directly and independently of all other causes from

accidental bodily injury.” J.A. 62. A rider excluded coverage for

“injury caused by or contributed to directly or indirectly by: the

Insured being under the influence of a ‘controlled substance.’”

J.A. 91.     Moore’s death prompted Mrs. Moore to file a claim for

accidental death benefits under the policy.          Unum (the insurance

company) denied the claim on two separate grounds:                  (1) that

Moore’s death was not accidental because he was the “aggressor in

an altercation that led to his death,” J.A. 112, and (2) that

coverage was excluded because Moore was under the influence of a

controlled    substance,     methamphetamine,   which    either    caused   or

contributed to his death.        Mrs. Moore pursued an internal appeal

with Unum, and the company’s ERISA appeals committee confirmed the

denial of her claim.       Mrs. Moore then filed an action to recover

under the policy in South Carolina state court, and Unum removed

the case (on grounds of complete preemption under ERISA) to the

United States District Court for the District of South Carolina.

The parties cross-moved for summary judgment.                 Thereafter, the


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parties stipulated that the district court “should decide the case

based on the record before the Court.”             J.A. 351 n.2.      After

conducting a de novo review of the administrative record, the

district court awarded judgment to Mrs. Moore, concluding that she

was entitled to death benefits under the policy.          The court also

awarded attorney’s fees to Mrs. Moore. Unum appeals, raising three

issues.

                                     II.

           Unum first argues that the district court applied the

wrong legal standard when it concluded that Moore’s death was an

accident within the meaning of the insurance policy.             We review

this   issue   of    policy   (or   contract)   interpretation   de   novo.

Johannssen v. Dist. No. 1-Pac. Coast Dist., 292 F.3d 159, 171 (4th

Cir. 2002).    Because the policy in this case is regulated by ERISA,

we are “guided by federal substantive law.”           Baker v. Provident

Life & Accident Ins. Co., 171 F.3d 939, 942 (4th Cir. 1999).            In

determining the principles of federal law that govern contract

interpretation under ERISA, we may, of course, look to state law

for guidance.       Id.

           When an insured dies as a result of the intentional act

of another, the death is considered accidental “if the insured is

innocent of aggression, or wrongdoing, or even if he is the

aggressor, if he could not reasonably anticipate bodily injury

resulting in death to himself at the hands of another.”           New York


                                      5
Life Ins. Co. v. Murdaugh, 94 F.2d 104, 107 (4th Cir. 1938)

(internal quotation marks and citation omitted).             The district

court concluded that Moore’s death was accidental because, even if

Moore was the aggressor, he would not have anticipated “the cardiac

arrhythmia which resulted in death as highly likely to occur under

the circumstances.”     J.A. 352.

           The district court misapplied the standard.            When an

altercation ends in the death of the aggressor, the death is not an

accident if the aggressor could reasonably anticipate that he might

die at the hands of his opponent.       The aggressor does not have to

anticipate the exact cause of his death.           The question, in other

words, is whether it is reasonably foreseeable to the aggressor

that he is triggering a chain of events that could result in his

death, regardless of the exact cause.      A case cited by Mrs. Moore,

Rooney v. Mutual Benefit Health and Accident Association, 170 P.2d

72 (Ca. App. 1946), illustrates the role that the aggressor’s

foreseeability plays in determining whether his death resulting

from an altercation is accidental.      In Rooney the insured got into

an argument with a stranger in a restaurant, and the insured

invited the stranger outside to settle the matter.            A fistfight

ensued, and no deadly weapons were involved.         The insured, who was

the aggressor, died after hitting his head on a concrete sidewalk

during   the   fight.    The   insured’s   death    was   accidental,   the

California Court of Appeals held, because he did not have reason to


                                    6
believe his “fistic encounter would result in death.”      Id. at 74.

Thus, under Rooney, when the aggressor can reasonably expect that

his death could be the result of the altercation he initiates, his

death is not accidental.    Id.   In sum, the aggressor’s death does

not fit the accidental category if he can reasonably anticipate

that his death could result from the altercation.       The aggressor

does not have to forsee the exact cause of death.

          Here, Moore’s death was not an accident simply because he

would not have reasonably anticipated the exact cause, cardiac

arrhythmia.   Moore entered his girlfriend’s house uninvited at

about 4:00 a.m., and carrying his handgun, he went into her bedroom

where she was with another man who was her guest.             Moore’s

resulting death was not an accident “if he could [have] reasonably

anticipate[d] bodily injury resulting in death to himself at the

hands of another.”     New York Life Ins. Co. v. Murdaugh, 94 F.3d

104.   We therefore vacate the district court’s determination that

Moore’s death was an accident, and we remand for the proper

application of the standard set forth in New York Life Insurance

Company v. Murdaugh.

                                  III.

          Unum argues second that the district court erred in

concluding that Moore’s death was not directly or indirectly caused

by his use of methamphetamine.           This meant that Unum was not

excused from the payment of death benefits because of the policy’s


                                   7
controlled substances exclusion.

            The toxicology tests of Moore’s blood showed he had

between 2.1 mg/L and 3.9 mg/L of methamphetamine in his system at

the time of his death.      A forensic review by Dr. Kristin G. Sweeney

provides the only medical analysis in the administrative record of

the relationship between Moore’s methamphetamine use and his death.

Dr. Sweeney’s report discusses in general terms the link between

the use of stimulants and cardiac arrhythmia.           She concludes that

“chronic cocaine and/or methamphetamine abuse could contribute to

a cardiomyopathy” and that the “known pharmacologic effects of

methamphetamine,    particularly    at   this   toxic    level,   could   be

expected to acutely exacerbate any pre-existing cardiovascular

disease.”    J.A. 126-27.

            In the district court proceedings, Unum sought to bolster

Dr. Sweeney’s report by tendering the deposition of Dr. Joel

Sexton; Dr. Sexton was deposed in a separate proceeding after the

administrative record in this case had closed.             Dr. Sexton had

already submitted a report in this case; however, his original

conclusions, which were in the administrative record and which were

made without an examination of the toxicology results, did not

mention methamphetamine.       In the tendered deposition, Dr. Sexton

testified that after considering the toxicology report, he had

concluded methamphetamine was a cause of Moore’s death. Mrs. Moore

objected to the submission of the Sexton deposition, and the


                                     8
district   court    excluded    it,    holding   that    it   was   “improper

supplemental evidence.”       J.A. 355.

           In   Quesinberry    v.     Life   Insurance   Company    of    North

America, 987 F.2d 1017 (4th Cir. 1993), we discussed when it is

proper for a district court, in conducting a de novo review of an

ERISA benefits claim, to consider evidence that was not part of the

record before the plan administrator. As a general rule, the court

should consider only the administrative record that was before the

administrator.     “Exceptional circumstances,” however, “may warrant

an exercise of the [district] court’s discretion” to consider

additional evidence when it is “necessary for resolution of a

benefit claim.”      Id. at 1026-27.         Unum argues that two of the

exceptional circumstances mentioned in Quesinberry required the

district   court   to   consider    Dr.    Sexton’s   testimony:     (1)    the

analysis in Dr. Sexton’s deposition could not have been presented

during the administrative process and (2) the controlled substances

exception in the policy requires the consideration of a complex

medical question that should be resolved with the assistance of

actual testimony.       Dr. Sexton’s deposition does not fall within

either of these exceptions.

           First, although Dr. Sexton was deposed after Unum, the

plan administrator, reached its decision, the toxicology report

showing that Moore was under the influence of methamphetamine was

available before the administrative record was closed.                   As the


                                       9
district court found, Unum could have submitted the toxicology

report to Dr. Sexton, or another expert, for an opinion before the

administrative record closed.   For whatever reason, Unum failed to

take this step.     As we observed in Quesinberry, there is a

difference between evidence that could have been mustered during

the administrative process and evidence that simply could not have

been developed in time.   In other words, “if the evidence . . . is

simply better evidence than the [party] mustered for the claim

review, then its admission is not necessary” in the district court.

Id. at 1027.   Dr. Sexton’s analysis of the toxicology report is

simply better evidence than could have been, but was not, developed

and included in the administrative record.

          Second, the role of methamphetamine in Moore’s death is

a medical question, but it is not so complex that it cannot be

resolved by review of the administrative record.      This is not a

situation where additional information in the form of actual

testimony is necessary to “facilitate the understanding of complex

medical [issues] through an exchange of questions and answers

between experts, counsel, and the court.”       Id.    If Unum had

submitted for the administrative record a report from Dr. Sexton

analyzing the toxicology data on Moore, we are confident that the

doctor’s report would have been sufficiently understandable on

judicial review.   In short, the district court did not abuse its

discretion in excluding Dr. Sexton’s deposition.


                                10
          Finally, we turn to the district court’s decision that

the controlled substance exclusion does not apply, a decision that

we review de novo.      Id. at 1022.    The district court concluded that

the evidence in the administrative record is insufficient to permit

a finding that Moore’s death was a direct or indirect result of

methamphetamine use.       Dr. Sweeney’s opinion about the effects of

chronic use of methamphetamine or cocaine is not relevant because

there is no evidence that Moore was a chronic user of such drugs.

In   addition,    Dr.    Sweeney’s     opinion   --   that   the   level   of

methamphetamine in Moore’s system could have contributed to his

death by exacerbating a pre-existing cardiovascular disease -- is

too indefinite to support a finding that Moore’s death was a result

of methamphetamine use.      We therefore affirm the district court’s

determination that there was not sufficient evidence to trigger the

controlled substances exclusion.

                                       IV.

          Finally, Unum appeals the award of attorney’s fees to

Mrs. Moore.      After the district court granted judgment to Mrs.

Moore awarding her death benefits under the policy, the court

entered an order granting her motion for attorney’s fees under

ERISA, 29 U.S.C. § 1132(g).       Because we are vacating the judgment

awarded to Mrs. Moore, we also vacate the order allowing her

attorney’s fees.     The attorney’s fees issue may be reconsidered on

remand should that become appropriate.


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                               V.

          In sum, we vacate the district court’s orders awarding

judgment and attorney’s fees to Rosanne Moore.     We affirm the

district court’s conclusion that coverage cannot be denied under

the policy’s controlled substances exclusion.     We remand for

reconsideration of whether or not William E. Moore’s death was an

accident under the standard discussed in part II of this opinion.

                                                 VACATED IN PART,
                                                AFFIRMED IN PART,
                                                     AND REMANDED




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