                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 BETHANY WILLIAMS; STEPHEN                        No. 13-55719
 WILLIAMS, Co-Trustees of the Jack
 and Cheryl Williams Revocable                      D.C. No.
 Living Trust,                                   3:12-cv-01590-
                Plaintiffs-Appellants,             AJB-WMC

                     v.
                                                    OPINION
 NATIONAL UNION FIRE INSURANCE
 COMPANY OF PITTSBURGH, PA, a
 Pennsylvania corporation,
                 Defendant-Appellee.


       Appeal from the United States District Court
          for the Southern District of California
       Anthony J. Battaglia, District Judge, Presiding

                  Argued and Submitted
             May 7, 2015—Pasadena, California

                          Filed July 7, 2015

     Before: Kermit V. Lipez,* Kim McLane Wardlaw,
          and Mary H. Murguia, Circuit Judges.

                    Opinion by Judge Lipez

  *
    The Honorable Kermit V. Lipez, Senior Circuit Judge for the First
Circuit, sitting by designation.
2          WILLIAMS V. NAT’L UNION FIRE INS. CO.

                           SUMMARY**


        Employee Retirement Income Security Act

    Affirming the district court’s summary judgment in an
ERISA action, the panel held that an insurer properly denied
accidental death benefits to the insured’s family because his
death as a result of Deep Vein Thrombosis did not result from
an “accident” as defined by the insurance policy.


                             COUNSEL

David A. Shaneyfelt (argued), The Alvarez Firm, Calabasas,
California, for Plaintiffs-Appellants.

Sherry L. Swieca (argued), Mark R. Attwood, and Cynthia J.
Emry, Jackson Lewis LLP, Los Angeles, California, for
Defendant-Appellee.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
           WILLIAMS V. NAT’L UNION FIRE INS. CO.              3

                          OPINION

LIPEZ, Circuit Judge:

    This case, brought under the Employee Retirement
Income Security Act (“ERISA”), stems from the sudden
death of Jack Williams as a result of Deep Vein Thrombosis
(“DVT”) shortly after he completed roughly 28 hours of air
travel in a five-day period. Appellee National Union Fire
Insurance Co. of Pittsburgh, Pennsylvania denied accidental
death benefits to Williams’ family on the ground that his
death did not result from an “accident” under the terms of the
policy. The district court accepted the insurer’s interpretation
of the policy and granted summary judgment for National
Union. Because we agree that Williams’ death did not result
from an “accident” as defined by the policy, and thus was not
a covered “injury,” we affirm.

                      BACKGROUND

I. Facts

    Jack Williams was an acclaimed horticulturist who
traveled extensively in his role as the international product
manager and technical support representative for Paul Ecke
Ranch, Inc., a company based in Encinitas, California. In
October 2010, Williams flew more than 15 hours from Los
Angeles to Tokyo and shortly thereafter took three additional
flights, totaling almost 13 hours, from Tokyo to several
Australian cities. On the morning of October 18, Williams
collapsed as he walked from his hotel to meet a colleague and
was pronounced dead on arrival at a local hospital. An
autopsy report attributed his death to DVT, which had
triggered a pulmonary embolism (“PE”).
4        WILLIAMS V. NAT’L UNION FIRE INS. CO.

     DVT is a known hazard of long flights, with the risk of
developing the syndrome approximately doubling after a
flight of more than four hours and continuing to rise with
increased travel time and multiple flights within a short
period. The blood clots that give rise to DVT occur as a
result of the prolonged seated immobility that accompanies
air travel, likely in combination with dehydration and
underlying risk factors. A clot that breaks off and travels
through the bloodstream is called an embolus, which becomes
life-threatening if it reaches the lungs and blocks blood flow.
This apparently is what happened to Williams, who was
otherwise in good health.

   As a named insured under a policy purchased by his
employer, Williams was eligible for a $1 million accidental
death benefit if injured while traveling by air. The policy,
which is governed by ERISA, defines injury in Endorsement
E-5:

       Injury — means bodily injury: (1) which is
       sustained as a direct result of an unintended,
       unanticipated accident that is external to the
       body and that occurs while the injured
       person’s coverage under this Policy is in
       force; (2) which occurs under the
       circumstances described in a Hazard
       applicable to that person; and (3) which
       directly (independent of sickness, disease,
       mental incapacity, bodily infirmity or any
       other cause) causes a covered loss under a
       Benefit applicable to such Hazard.

(Emphasis added.) Pursuant to the policy, Williams’ wife,
Cheryl, submitted a claim form titled “Proof of Loss -
            WILLIAMS V. NAT’L UNION FIRE INS. CO.                           5

Accidental Death,” in which she reported the cause of death
as “pulmonary thromboembolism deep vein thrombosis.”1

    National Union’s claims administrator concluded that no
benefits were payable, explaining in its letter that “there is
insufficient evidence to support a conclusion that Mr.
Williams experienced a bodily injury sustained as a direct
result of an unintended, unanticipated accident that was
external to the body and which directly (independent of
sickness, disease, mental incapacity, bodily infirmity or any
other cause) caused his death.”2           Cheryl Williams
unsuccessfully appealed the decision to National Union’s
ERISA Appeals Committee, which explained its rejection of
her claim as follows:

          Based on the available information, Mr.
          Williams’ death was the result of sickness,
          disease, bodily infirmity or a cardiovascular
          accident or event, an internal reaction of his
          body to an extended period of inactivity.
          There was no evidence that there was
          anything unusual about Mr. Williams’ flights
          during this time period, nor was there


  1
   Cheryl Williams died before the district court issued its decision, and
the court granted the parties’ motion to substitute Bethany Williams and
Stephen Williams, co-trustees of the Jack and Cheryl Williams Revocable
Living Trust, as named Plaintiffs.
      2
      The policy expressly excludes from coverage “sickness, disease,
mental incapacity or bodily infirmity whether the loss results directly or
indirectly from any of these,” and “even if the proximate or precipitating
cause of the loss is an accidental bodily injury.” Like the district court, we
do not consider the applicability of the exclusions because we conclude
that the policy does not provide coverage.
6          WILLIAMS V. NAT’L UNION FIRE INS. CO.

         evidence that any unanticipated or unintended
         external event or bodily injury occurred which
         resulted in his deep vein thrombosis or
         pulmonary embolism.3

II. Legal Proceedings

    Following the final administrative rejection of her claim,
Cheryl Williams initiated this federal action against National
Union. See 29 U.S.C. § 1132(a)(1)(B) (permitting a
beneficiary of an employee benefit plan governed by ERISA
to bring a civil action to recover benefits owed under the
plan). Both sides moved for summary judgment. Cheryl
Williams claimed that her husband’s death occurred as a
result of an accident as defined by the policy because the
death was both unintended and unanticipated, and its
cause—prolonged sitting on planes—was “external to the
body.” National Union again pressed its view that no benefits
were owed because Williams’ death did not result from an
unanticipated or unintended external event or bodily injury.

    The district court ruled for the insurer, concluding that
Plaintiffs had failed to establish entitlement to benefits
because Williams’ death did not result from “an accident
‘external to the body,’” as required by both the express
language of the National Union policy and prevailing
California law. See Williams v. Nat’l Union Fire Ins. Co. of
Pittsburgh, PA, No. 3:12-cv-01590, 2013 WL 1431822, at *8
(S.D. Cal. Apr. 9, 2013) (observing that “California courts
have been unwilling to find that an injury or death was


    3
   It is undisputed that other prerequisites to coverage (death during the
policy period and injury occurring while traveling as a passenger on a
civilian aircraft) were met.
         WILLIAMS V. NAT’L UNION FIRE INS. CO.               7

‘accidental’ unless ‘it was in some manner caused by an event
or occurrence unforeseen and external to the insured’”
(quoting Khatchatrian v. Cont’l Cas. Co., 198 F. Supp. 2d
1157, 1162 (C.D. Cal. 2002) (footnote omitted)). The court
rejected Plaintiffs’ theory that Williams’ death was accidental
within the meaning of the policy because the DVT arose from
“unintended external causes.” Although agreeing that the
condition arose unexpectedly, the court held that “the
ordinary and common meaning of ‘accident’ does not
encompass DVT/PE under these circumstances.”

    Accordingly, the court denied Plaintiffs’ cross-motion for
summary judgment and granted National Union’s cross-
motion.     Plaintiffs timely appealed, reiterating their
contention that Williams’ death was a benefits-triggering
injury under the policy.

                STANDARD OF REVIEW

    We review de novo a district court’s grant or denial of
summary judgment. Lopez-Valenzuela v. Arpaio, 770 F.3d
772, 777 (9th Cir. 2014) (en banc). De novo review also
applies to the denial of benefits under a plan subject to
ERISA where, as here, the plan does not assign the
administrator discretionary authority to determine benefits
eligibility or construe the plan’s terms. See Metro. Life Ins.
Co. v. Glenn, 554 U.S. 105, 111 (2008); Standard Ins. Co. v.
Morrison, 584 F.3d 837, 840 (9th Cir. 2009).
8         WILLIAMS V. NAT’L UNION FIRE INS. CO.

                       DISCUSSION

I. Principles of Construction

     In construing the language of an ERISA-governed policy,
courts apply federal common law. Padfield v. AIG Life Ins.
Co., 290 F.3d 1121, 1125 (9th Cir. 2002). Under that law,
policy terms are interpreted in the “ordinary and popular
sense as would a person of average intelligence and
experience.” Id. (quoting Babikian v. Paul Revere Life Ins.
Co., 63 F.3d 837, 840 (9th Cir. 1995)). In developing federal
common law to govern ERISA claims, courts may “borrow
from state law where appropriate, and [be] guided by the
policies expressed in ERISA and other federal labor laws.”
Id. (quoting Babikian, 63 F.3d at 840) (alteration in original).

    The policy provision at issue, Endorsement E-5,
articulates three required elements of a covered “bodily
injury”: (1) it directly resulted from an “accident” that was
both (2) “unintended [and] unanticipated,” and (3) “external
to the body.” Hence, our task is to determine whether the
average person, considering these prerequisites as they are
articulated in the policy, would conclude that plaintiffs are
entitled to accidental death benefits. See Dupree v. Holman
Prof’l Counseling Ctrs., 572 F.3d 1094, 1097 (9th Cir. 2009)
(stating that the principles applicable to review of an ERISA
policy “direct us to look to the agreement’s language in
context and construe each provision in a manner consistent
with the whole such that none is rendered nugatory”).

II. Policy Interpretation

   In arguing that Williams’ death resulted from an
“accident” as required by the National Union policy,
           WILLIAMS V. NAT’L UNION FIRE INS. CO.                        9

Plaintiffs attempt to take advantage of the imprecision of that
word. The term “accident” has been described as a “vague
concept,” Lee R. Russ & Thomas F. Segalla, 10 Couch on
Insurance 3d (“Couch 3d”), § 139:1, at 139-9 (rev. ed. 2009),
that is “disarmingly difficult to define,” McAuley v. Fed. Ins.
Co., No. 4:05CV1826 AGF, 2009 U.S. Dist. LEXIS 52899,
at *52 (E.D. Mo. March 31, 2009). See also Geddes & Smith,
Inc. v. St. Paul-Mercury Indem. Co., 334 P.2d 881, 884 (Cal.
1959) (observing that “[n]o all-inclusive definition of the
word ‘accident’ can be given”). Indeed, the varied definitions
of “accident” include some with broad scope. One general
purpose dictionary describes an accident, inter alia, as “an
undesirable or unfortunate happening that occurs
unintentionally and usually results in harm, injury, damage,
or loss; casualty; mishap.” The Random House Dictionary of
the English Language 12 (2d ed. 1987). A widely used legal
dictionary similarly includes one definition with expansive
reach: “[a]n unintended and unforeseen injurious occurrence;
something that does not occur in the usual course of events or
that could not be reasonably anticipated.” Black’s Law
Dictionary 18 (10th ed. 2014).

    Consistently with these definitions, Williams’ death itself
reasonably could be characterized as an “accident.” As
Plaintiffs assert, his loss of life from DVT/PE was a sudden,
unexpected, and out-of-the ordinary happening—a
“casualty.”4       However, the modifying language in

   4
      As such, Williams’ death differs from fatalities resulting from
progressive conditions, such as a stroke or heart attack. Cf. Khatchatrian
v. Cont’l Cas. Co., 332 F.3d 1227, 1229 (9th Cir. 2003) (rejecting
accidental death coverage where the insured died from a stroke); Geddes
& Smith, 334 P.2d at 884 (emphasizing that an “accident” does not include
“a series of imperceptible events that finally culminated in a single
tangible harm”).
10       WILLIAMS V. NAT’L UNION FIRE INS. CO.

Endorsement E-5 narrows the availability of benefits in a
significant respect: the accident—i.e., the “unintended and
unforeseen injurious occurrence,” Black’s Law Dictionary, at
18—must have been “external to the body.”

     Plaintiffs argue that the external-to-the-body requirement
is met here because Williams’ death resulted from
circumstances that originated outside his body. They assert
that Williams’ “confined sitting set in progress a chain of
events that led directly to his death.” Br. at 30 (emphasis
omitted); see also id. (“[T]he confined sitting was the prime
or moving cause of death[.]” (emphasis omitted)). Hence,
they claim, “the cause of death was external to him, although
it acted internally.” Id. (emphasis omitted).

    In relying on this reasoning, however, Plaintiffs fail to
acknowledge the relationship among the multiple
requirements stated in Endorsement E-5. As noted, the
provision covers an injury “sustained as a direct result of an
unintended, unanticipated accident that is external to the
body.” The cause of death thus must be not only external, but
also an “accident”—i.e., an unintended and unanticipated
occurrence. Accordingly, contrary to Plaintiffs’ view,
coverage does not turn on whether “unexpected or unintended
harm arose from an external cause during passenger air
travel,” Br. at 28 (emphasis added), but on whether there
were external, harm-causing circumstances that were
themselves unexpected and unintended. Although Williams’
confined seating on planes may have been an external cause
of his death, there was nothing “unintended” or
“unanticipated”—i.e., nothing accidental—about his seating
arrangement.
           WILLIAMS V. NAT’L UNION FIRE INS. CO.                      11

    Nor did Williams encounter unusual circumstances during
his flights that aggravated the impact of his prolonged
seating. Plaintiffs do not assert that he unexpectedly was
prevented from moving around the planes, drinking fluids, or
taking other measures to minimize the risk of DVT. There
was no reported intervention by airline personnel that could
have affected Williams’ physical well-being. Cf. Olympic
Airways v. Husain, 540 U.S. 644, 657 (2004) (characterizing
a death triggered by an asthma attack as accidental where a
flight attendant repeatedly refused to move the passenger
from a seat near the plane’s smoking section). In their brief,
Plaintiffs propose alternative scenarios that could have
resulted in a fatal blood clot in an effort to bolster their
argument that the cause of Williams’ death was “external,”
but the hypothetical situations they offer—luggage falling
from an overhead bin or a dining tray slamming into
Williams’ head—illustrate the difference between an
unexpected occurrence “external to the body” and
unexpected harm resulting from ordinary conditions.5

    We thus conclude that no “person of average intelligence
and experience,” Padfield, 290 F.3d at 1125 (internal
quotation marks omitted), would find that Williams died “as
a direct result of an unintended, unanticipated accident that
is external to the body.” Indeed, our analysis based on
careful review of the policy language is reinforced by what
we consider the common understanding of an “accidental
death.” In ordinary parlance, an “accident” connotes an
unintended, unexpected happening that may cause injury or
damage to persons or property. In other words, as popularly


  5
    Similarly distinguishable are the cases that Plaintiffs cite involving
fatal burns from an accidental fire, a slip-and-fall causing bleeding, and
heart problems caused by a car accident or “unusual” physical stress.
12         WILLIAMS V. NAT’L UNION FIRE INS. CO.

understood, an accident is an unexpected occurrence separate
from the harm that results from it. Williams’ death does not
fit that mold. See Rodriguez v. Ansett Austl. Ltd., 383 F.3d
914, 919 (9th Cir. 2004) (concluding that the death of an
airline passenger as a result of DVT was not accidental under
Article 17 of the Warsaw Convention).6

                          CONCLUSION

    Plaintiffs plausibly argue that Williams’ confined seating
during his prolonged air travel was an “external” cause of his
death. However, they point to no aspect of his flights or his
seating position that departed from the usual conditions of
such travel. Hence, regardless of whether Williams’ death
may be characterized as an externally caused “accident” when
considering that word in isolation, his loss of life was not
within the policy’s coverage. His fatal injury did not directly
result from an unintended and unanticipated happening
“external to the body.”




  6
    Plaintiffs insist that Rodriguez and other Warsaw Convention cases
concerning DVT “have no place in the construction of accidental death
insurance policies” because the analysis of an “accident” under the
Warsaw Convention is unique to that treaty-specific context. We agree
that the textual analysis in the Warsaw Convention cases is not directly
applicable here. Nonetheless, those cases are tangentially relevant
because the meaning the Supreme Court has given to “accident” under the
treaty substantially overlaps with the prerequisites for accidental injury
benefits expressly stated in the National Union policy. See Air France v.
Saks, 470 U.S. 392, 405 (1985) (holding that “liability under Article 17 of
the Warsaw Convention arises only if a passenger’s injury is caused by an
unexpected or unusual event or happening that is external to the
passenger”).
         WILLIAMS V. NAT’L UNION FIRE INS. CO.           13

   We therefore affirm the district court’s rulings granting
summary judgment for National Union and denying summary
judgment for Plaintiffs.

   AFFIRMED.
