                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit Rule 206
                                       File Name: 09a0397p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                X
                                                 -
 THOMAS KOVACH et al.,
                                                 -
                               Plaintiffs-Appellants,
                                                 -
                                                 -
                                                      No. 08-4512
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellee. -
 ZURICH AMERICAN INSURANCE COMPANY,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Northern District of Ohio at Cleveland.
              No. 07-02584—Christopher A. Boyko, District Judge.
                                       Argued: July 28, 2009
                            Decided and Filed: November 13, 2009
                                                                                                  *
     Before: GILMAN and McKEAGUE, Circuit Judges; SARGUS, District Judge.

                                       _________________

                                             COUNSEL
ARGUED: Matthew D. Greenwell, CHARLES V. LONGO CO., L.P.A., Beachwood,
Ohio, for Appellant. Rebecca B. Jacobs, ULMER & BERNE LLP, Columbus, Ohio, for
Appellees. ON BRIEF: Matthew D. Greenwell, CHARLES V. LONGO CO., L.P.A.,
Beachwood, Ohio, for Appellant. Rebecca B. Jacobs, ULMER & BERNE LLP,
Columbus, Ohio, Richard D. Sweebe, Patricia A. Shlonsky, ULMER & BERNE LLP,
Cleveland, Ohio, for Appellees.
       GILMAN, J., delivered the opinion of the court, in which SARGUS, D. J.,
joined. McKEAGUE, J. (pp. 25-37), delivered a separate dissenting opinion.




         *
           The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of
Ohio, sitting by designation.


                                                   1
No. 08-4512        Kovach et al. v. Zurich Am. Ins. Co.                          Page 2


                                 _________________

                                      OPINION
                                 _________________

       RONALD LEE GILMAN, Circuit Judge. On November 7, 2005, Thomas
Kovach was riding his motorcycle while intoxicated, ran a stop sign, and collided with
another vehicle in the intersection. He sustained severe injuries that led to the
amputation of his left leg below the knee. Mr. Kovach was insured under an accidental
death and dismemberment (AD&D) insurance policy provided by his wife’s employer
(hereafter referred to as the Plan). He and his wife Rebecca filed a claim with Zurich
American Insurance Company, the administrator of the Plan, for dismemberment
benefits. Zurich denied the Kovaches’ claim after determining that Mr. Kovach’s
injuries were caused by his drunk driving and therefore not covered as an “accidental”
occurrence under the Plan.

       The Kovaches brought a claim under the Employee Retirement Income Security
Act, 29 U.S.C. §§ 1001-1461 (ERISA), that challenged Zurich’s denial of coverage.
Applying a deferential arbitrary-and-capricious standard, the district court granted
summary judgment in favor of Zurich. On appeal, the Kovaches argue that (1) the
district court should have applied a de novo standard of review because Zurich
improperly delegated its decisionmaking authority to an outside lawyer, and (2) Zurich’s
denial of their claim was improper under either standard. Although we reject the
Kovaches’ first argument, we agree with their second. We therefore REVERSE the
judgment of the district court and REMAND the case for the entry of a judgment in
favor of the Kovaches.
No. 08-4512          Kovach et al. v. Zurich Am. Ins. Co.                             Page 3


                                   I. BACKGROUND

A.        The AD&D policy

          Rebecca Kovach enrolled in the Plan through her employer, KeyCorp. Zurich,
as the Plan Administrator, was responsible for the processing and payment of claims
under the Plan and was the claims fiduciary. The AD&D coverage paid benefits for
losses, including dismemberment, resulting from an injury according to the following
definition:

          Injury means a bodily injury directly caused by accidental means which
          is independent of all other causes, results from a Hazard, and occurs
          while the Covered Person is insured under this Policy.
Although the term “accidental” is not defined, the Plan includes several explicit
exclusions, including the following:

          A loss shall not be a Covered Loss if it is caused by, contributed to, or
          resulted from:

          1.     Suicide, attempted suicide, or a purposeful self-inflicted wound;
                 ...
          7.     Skydiving, parasailing, hangglinding [sic], bungee-
                 jumping, or any similar activity . . . .
          Mrs. Kovach’s policy provided for up to $250,000 of coverage. In the case of
an amputated limb, the policy paid $125,000. Mr. Kovach was covered under his wife’s
policy.

B.        Mr. Kovach’s accident and resulting amputation

          On November 7, 2005, Mr. Kovach was involved in a collision while riding his
motorcycle in Ravenna, Ohio. According to the crash report filed by the responding
officer, Mr. Kovach ran a stop sign at a four-way intersection and was struck by a car.
Mr. Kovach was taken to Robinson Memorial Hospital in Portage County to be
stabilized. Based on the severity of his injuries, he was then flown via Medivac
No. 08-4512        Kovach et al. v. Zurich Am. Ins. Co.                             Page 4


helicopter to the Cleveland MetroHealth Medical Center. The doctors were unable to
save Mr. Kovach’s left leg, which they amputated just below the knee.

       Mr. Kovach’s admission report from MetroHealth noted that a blood sample
taken at Robinson Memorial Hospital after the accident and tested by an outside lab
showed that Mr. Kovach had a blood alcohol content (BAC) of .148%—well over the
legal limit in Ohio of .08%. See O.R.C. § 4511.19(A)(1). MetroHealth took its own
sample of Mr. Kovach’s blood sometime after his arrival. Those results showed a BAC
of .085% and also showed the presence of opiates and benzodiazepines. The Kovaches
contend that the positive drug test was due to medically administered valium and
morphine given to Mr. Kovach after the accident, a contention not refuted by the record.

C.     Zurich’s denial of the Kovaches’ AD&D claim

       Mr. Kovach and his wife timely filed a dismemberment claim with Zurich in
December 2005. The claim was based on Mr. Kovach’s below-the-knee amputation.
Zurich subsequently retained the services of CS Claims Group, Inc., an independent
investigation firm, to obtain Mr. Kovach’s hospital and toxicology records, as well as
the records from all of his treating physicians. Upon receiving the MetroHealth records
and noting Mr. Kovach’s BAC, Zurich decreased its reserves on the claim from
$125,000 to $10 in anticipation that the claim would be denied. Zurich then hired an
attorney, Daniel Maguire, to review Mr. Kovach’s file and to draft a denial letter based
on the policy’s provisions if Maguire agreed that the claim should be denied. The
insurer’s letter to Maguire noted that Mr. Kovach “was the operator of a motorcycle that
appears to have run a stop sign and hit another vehicle in the intersection . . . [and] was
intoxicated at the time of loss.”

       Maguire agreed with Zurich’s inclination that the claim should be denied and
prepared an opinion letter that discussed the applicable caselaw, concluding that no
benefits were payable. Zurich subsequently authorized a denial of the benefits. It sent
a denial letter to the Kovaches in March 2006 using language taken from Maguire’s
opinion letter. The denial letter explained that Zurich had concluded that Mr. Kovach’s
No. 08-4512         Kovach et al. v. Zurich Am. Ins. Co.                             Page 5


injury was not due to an “accident” under the terms of the Plan because Mr. Kovach
(a) was driving with almost twice the legal BAC, (b) had tested positive for opiates and
benzodiazepines, and (c) had, according to the police officer responding to the accident,
run a stop sign and thereby initiated the crash. Zurich thus reasoned that the injury was
a reasonably foreseeable consequence of driving while under the influence of alcohol
and possibly drugs. Citing several federal decisions upholding the denial of AD&D
benefits under allegedly similar circumstances, Zurich also concluded that the facts
supported the application of the policy’s self-inflicted-wound exclusion.

        The Kovaches timely appealed Zurich’s initial denial of the claim to the insurer’s
ERISA Review Committee.          They submitted what they characterized as “newly
discovered relevant evidence” in the form of Mr. Kovach’s affidavit, which asserted that
the other driver, not he, ran the stop sign. Zurich responded by clarifying that the
Kovaches were not presenting newly discovered evidence, but rather a different version
of the events surrounding the incident. Zurich nevertheless noted that it had decided to
stay the appeal in order to clarify the issue of which party was at fault for the collision.

        To investigate the fault issue, Zurich again retained CS Claims Group, Inc. to
obtain the Ravenna Police Department’s final Traffic Crash Report. The report
confirmed that Kovach had been cited for a stop-sign violation and had tested positive
for drugs (based on the MetroHealth test results). Zurich had previously seen only the
initial accident report, which lacked these details. After reviewing this information,
Zurich’s ERISA Review Committee informed the Kovaches’ counsel that it had affirmed
the denial of benefits.

D.      The lawsuit

        The Kovaches filed a complaint in the United States District Court for the
Northern District of Ohio in August 2007. They named both Zurich and Mrs. Kovach’s
employer, KeyCorp, as defendants. KeyCorp was dismissed as a defendant shortly
thereafter. The parties subsequently filed cross-motions for judgment based upon the
administrative record. In September 2008, the district court issued an order upholding
Zurich’s denial of benefits. The Kovaches have timely appealed that order.
No. 08-4512         Kovach et al. v. Zurich Am. Ins. Co.                             Page 6


                                     II. ANALYSIS

A.      Standard of review

        We review de novo the district court’s disposition of an ERISA action based
upon the administrative record, and apply the same legal standard as the district court.
Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir. 1998). As discussed
in Part II.B. below, the district court in this case appropriately reviewed the Kovaches’
suit under the arbitrary-and- capricious standard because the Plan granted discretionary
authority to Zurich as the plan administrator to interpret the Plan’s terms and to
determine its benefits. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111-15
(1989) (establishing the arbitrary-and-capricious standard of review in ERISA cases
where the plan administrator has discretionary authority); Glenn v. Metro. Life. Ins. Co.,
461 F.3d 660, 666 (6th Cir. 2006) (applying Firestone’s standard of review).

        Under the arbitrary-and-capricious standard, we must uphold the administrator’s
decision “if [the administrator’s] interpretation of the Plan’s provisions is ‘reasonable.’”
Morrison v. Marsh & McLennan Cos., 439 F.3d 295, 300 (6th Cir. 2006) (citing
Firestone, 489 U.S. at 111). But the arbitrary and capricious standard is not a “rubber
stamp [of] the administrator’s decision.” Glenn, 461 F.3d at 661. Rather, it requires us
to review “the quality and quantity of the . . . evidence and the opinions on both sides
of the issues.” McDonald v. W.-S. Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003).

B.      Zurich’s retention of Maguire does not alter the applicable standard of
        review
        The parties agree that the Plan gives Zurich discretionary authority to determine
eligibility for benefits and to construe the terms of the Plan. As noted above, this vesting
of discretionary authority in Zurich would typically lead us to apply an arbitrary-and-
capricious standard of review. But the Kovaches argue that, even where a plan vests the
administrator with discretion, a de novo review of claim determinations is required if an
entity or person other than the one authorized by the plan renders the decision. See
Sanford v. Harvard Indus., 262 F.3d 590, 597 (6th Cir. 2001) (holding that where “an
unauthorized body that does not have fiduciary discretion to determine benefits
No. 08-4512        Kovach et al. v. Zurich Am. Ins. Co.                             Page 7


eligibility renders such a decision,” arbitrary-and-capricious review is “not warranted”).
The Kovaches contend that de novo review should apply in this case because Zurich
improperly delegated its discretionary authority to construe the Plan and determine
coverage to Maguire, an outside attorney who was not authorized by the Plan to act in
such a fiduciary capacity.

       The district court properly rejected this argument. Nothing in the record
indicates that Zurich in fact delegated to Maguire its authority to construe the Plan or
make a determination of whether to pay the Kovaches’ claim. Zurich initially set aside
$125,000 of reserves for the claim, the full amount that the Kovaches would have been
entitled to if their claim had been allowed. But after Zurich received Mr. Kovach’s
medical and toxicology records, it reduced the reserves to $10 because “this matter may
be a potential denial.” Zurich’s letter to Maguire seeking a legal opinion stated:
“[E]nclosed please find copy of [the] file for your review and if in agreement, the
drafting of the denial based on policy provisions.” After receiving Maguire’s opinion
letter, Patricia Lane of Zurich communicated to the claims specialist assigned to the
claim: “You have my authority to deny the claim and prepare and release the letter of
denial today.” The claim denial sent to the Kovaches incorporated language from
Maguire’s opinion letter, but was on Zurich letterhead and was signed on behalf of the
company. Zurich, not Maguire, made the final decision regarding the Kovaches’ claim.

       To the extent that the Kovaches argue that de novo review should apply because
Zurich’s use of an outside expert advisor was not explicitly authorized by the Plan, that
argument is not properly before us because the Kovaches did not raise it before the
district court. See Chandler v. Jones, 813 F.2d 773, 777 (6th Cir. 1987) (“It is a well-
established principle of appellate review that appellate courts do not address claims not
properly presented below.”). But this contention, even if it were properly before us,
lacks any support in the caselaw. Zurich’s retention of outside counsel to assist it in its
claim determination would in fact seem to demonstrate that it took the process seriously
and attempted to ensure that its decision had a strong legal basis. See, e.g., Karras v.
First Colony Life Ins. Co. Pension Plan, No. 6:05-cv-00031, 2006 U.S. Dist. LEXIS
No. 08-4512        Kovach et al. v. Zurich Am. Ins. Co.                            Page 8


18969, at *22 (W.D. Va. Apr. 13, 2006) (“[T]he fact that the Plan Administrator hired
and relied upon outside legal counsel bolsters its final conclusion.”).

       The Kovaches have not demonstrated that Zurich’s retention of Maguire
amounted to the sort of improper delegation of authority that would require us to apply
a de novo standard of review to Zurich’s decision. We will thus proceed to examine
Zurich’s denial of the Kovaches’ claim under the arbitrary-and-capricious standard.

C.     Zurich’s denial of coverage

       Zurich denied coverage because it determined that Mr. Kovach’s injuries were
not the result of an “accident,” but were the “reasonably foreseeable consequence of
driving while highly intoxicated and under the influence of drugs.” Moreover, Zurich
decided that Mr. Kovach’s injuries fell under the Plan’s self-inflicted-wound exclusion
because he “intentionally ingested a significant quantity of alcohol and apparently
opiates and benzodiazepines, and his injury occurred as a result of polysubstance
intoxication.” Zurich based this conclusion on a body of federal common law from
within this circuit addressing allegedly similar scenarios.

       We note at the outset that drunk driving is ill-advised, dangerous, and easily
avoidable. But, as will be discussed in more detail below, so are many other activities
that contribute to wrecks that a typical policyholder would consider “accidental.” We
must thus refrain from allowing our moral judgments about drunk driving to influence
our review of Zurich’s interpretation of the relevant Plan provisions.

D.     Whether Lennon controls

       The sole published decision of this court that has dealt with the issues now before
us is Lennon v. Metropolitan Life Insurance Co., 504 F.3d 617 (6th Cir. 2007). That
case involved what the court described as “grossly negligent,” “reckless drunk driving,”
id. at 618, 624, and resulted in three separate opinions—a lead, a concurrence, and a
dissent. Lennon was insured under an ERISA-covered personal accident insurance
(PAI) policy. On the day in question, he drove his car at a high rate of speed the wrong
way down a one-way portion of a divided street, losing control of his vehicle. The car
No. 08-4512          Kovach et al. v. Zurich Am. Ins. Co.                            Page 9


hit a curb, flew into the air, and slammed into a brick wall, killing Lennon. Lennon’s
BAC was later measured at .321, more than three times the legal limit in effect at the
time (.10) and high enough to render him only semi-conscious. See Blood Alcohol
Levels and Metabolism, http://www.radford.edu/~kcastleb/bac.html. Death has been
documented to occur at BACs starting at .35. Id.

        Lennon’s PAI policy provided in pertinent part as follows:

        If, while insured for Personal Accident Insurance, an [insured] sustains
        accidental bodily injuries, and within one year thereafter shall have
        suffered loss of life . . . as a direct result of such bodily injuries
        independently of all other causes, [MetLife] shall pay the benefit
        specified for such Losses.
Lennon, 504 F.3d at 619 (alterations in original). MetLife denied benefits to Lennon’s
estate, noting in its denial letter that Lennon’s BAC was three times the legal limit and
that “[t]he act of driving impaired . . . rendered the infliction of serious injury or death
reasonably foreseeable and, hence, not accidental.” Id. at 620. It thus concluded that
Lennon’s death was not “directly the result of accidental injuries, independent[] of all
other causes.” Id.

        The lead opinion concluded that MetLife had not acted arbitrarily and
capriciously in denying coverage for Lennon’s death. Id. at 620-21. Borrowing
terminology from tort law, the lead opinion characterized Lennon’s behavior as “grossly
negligent.” Id. at 621. It therefore reasoned that “in extreme cases courts may treat
wanton misconduct more like an intentional tort than like negligence[,]” id. (quoting
Dan R. Dobbs, The Law of Torts § 147, at 350-51 (2000)), and that a plan administrator
could similarly “treat such conduct as not accidental under a policy that only covers
accidents.” Lennon, 504 F.3d at 621.

        The lead Lennon opinion also stated that the number of cases holding that drunk
driving wrecks are not accidents “independently supports the conclusion that MetLife’s
determination was not arbitrary and capricious.” Id. at 622-23 (collecting cases). On
this point, the concurring opinion agreed. Id. at 625-26 (Boggs, C.J., concurring).
Importantly, though, the lead opinion specifically cautioned that
No. 08-4512          Kovach et al. v. Zurich Am. Ins. Co.                        Page 10


        we do not reach the question of whether a fiduciary can reasonably deny
        “accidental” benefits for [an] injury that results from any negligent or
        any illegal behavior, or from driving while only somewhat impaired.
Id. at 624 (emphasis added). The concurring opinion, moreover, made clear that the
majority’s holding did not reach the question of whether to approve or disapprove of
MetLife’s use of a “reasonably likely to occur” standard for defining what is an
“accident,” and further noted that its conclusion was based on “the set of facts presented
here . . . .” Id. at 626.

        Although the insightful analyses from all three of the Lennon opinions are highly
informative for our present review, Lennon is distinguishable and therefore not
controlling. The most obvious distinction is the disparity between Lennon’s and
Mr. Kovach’s BACs—.321 versus .148. Lennon’s BAC was more than twice that of
Mr. Kovach’s and more than four times the legal limit (.08) in place at the time of
Mr. Kovach’s wreck. The lead Lennon opinion further acknowledged that “drivers with
blood-alcohol levels above the legal limit as a group are far more likely to arrive home
safely than drivers who are extremely drunk.” 504 F.3d at 623 (emphasis added) (citing
Stamp v. Metro. Life Ins. Co., 466 F. Supp. 2d 422, 432 (D.R.I. 2006) (“The statistics
. . . are meaningless in this context. . . . They do not consider . . . the degree of his
intoxication.)). For this reason, the Lennon majority refused to impose a blanket
standard allowing insurers to consider injuries resulting from any wreck in which the
driver is intoxicated as nonaccidental. Id. at 624. Compared to the dangerously high
level of intoxication involved in Lennon, Mr. Kovach’s intoxication appears to fall into
the “somewhat impaired” category that Lennon declined to address.

        Lennon is distinct from the case before us in other ways as well. The lead
opinion was careful to note that the circumstances of Lennon’s crash were extreme:

        This case involved facts—Lennon’s extremely high blood-alcohol
        content, the manner in which Lennon’s car flew off the road, the lack of
        an alternative explanation for the death, and Lennon’s driving the wrong
        way down the street—that rendered at least reasonable MetLife’s
        conclusions that Lennon did not die as a result of an “accident” under the
        Plan.
No. 08-4512          Kovach et al. v. Zurich Am. Ins. Co.                        Page 11


Id. at 622. We agree with the Lennon lead opinion that driving the wrong way down a
one-way street while drunk to the point of semi-consciousness, and at a rate of speed so
fast that the vehicle is on the verge of becoming airborne, amounts to a level of
recklessness that would render the resulting injuries highly likely, and therefore not
accidental.

       The facts surrounding Mr. Kovach’s crash, however, are nowhere near as
dramatic as those in Lennon. Besides driving while intoxicated—at a level less than half
that of Lennon—the only other out-of-the-ordinary thing that Mr. Kovach did was run
a stop sign, something done with unfortunate frequency by sober drivers. There is no
indication in the record that Mr. Kovach was traveling at an abnormally high rate of
speed or driving in an otherwise risky manner.

       Finally, we note that Zurich did not—and could not—have relied on Lennon in
its review of the Kovaches’ claim. The Lennon opinion was issued more than a year
after the Kovachs’ claim was formally denied by Zurich.

       Our dissenting colleague, however, contends that we have overlooked two
critical factors in our analysis: (1) that Mr. Kovach was riding a motorcycle, which the
dissent characterizes as “an especially dangerous form of transportation,” and (2) that
he was “intoxicated on opiates” at the time of the accident. (Dissenting Op. at 25-26)
According to the dissent, these two “overlooked” factors establish that Mr. Kovach’s
behavior was as risky as Lennon’s, and that an accident under such circumstances was
“highly likely” to occur. (Dissenting Op. at 31, 33) But the record does not support
either contention.

       First, with regard to the motorcycle argument, the statistics cited by the dissent
show at most an increased likelihood of death or injury during a motorcycle crash, not
an increased likelihood of a crash as an initial matter. (Dissenting Op. at 30-31) But
the latter, not the former, is the relevant event in the instant case. Moreover, in making
its coverage decision, Zurich did not rely on the fact that Mr. Kovach was on a
motorcycle when the accident occurred, so whether a motorcycle is a particularly
dangerous form of transportation is irrelevant to our analysis. See Shelby County Health
No. 08-4512        Kovach et al. v. Zurich Am. Ins. Co.                           Page 12


Care Corp. v. Majestic Star Casino, LLC, 581 F.3d 355, 368-69 (6th Cir. 2009) (holding
that a plan administrator cannot support its argument on appeal with a fact not relied
upon in its initial coverage determination).

       Second, the dissent infers that Vicodin, an opiate, was in Mr. Kovach’s system
at the time of the accident because he had a prescription for the drug. (Dissenting Op.
at 27) But a prescription alone is not sufficient proof that Mr. Kovach was actually
taking the drug, or that it was still in his system at the time of the accident. The
Physicians’ Desk Reference cited by the dissent simply states that Vicodin “may impair”
mental or physical abilities. (Dissenting Op. at 28) This is not proof that it did so for
Mr. Kovach, and certainly does not show that the collision was “highly likely” to occur
even if some of the drug was still in his system at the time of the accident. (See Part
II.E.6. below for a discussion of the “highly likely” standard to be applied in determining
whether an event is “accidental.”)

       Furthermore, Zurich could have obtained the relevant records from the Robinson
Memorial Hospital (the first hospital to which Mr. Kovach was taken) if it had wanted
to, records that would have allegedly established that Mr. Kovach was on Vicodin at the
time of the accident. Zurich apparently decided not to pursue the issue despite the fact
that it had the burden of proving that Mr. Kovach was under the influence of Vicodin at
the time of the accident. Moreover, because Zurich did not pursue the matter and did not
rely on the Vicodin-related argument in denying coverage, it is not relevant to our
analysis. See Majestic Star Casino, LLC, 581 F.3d at 368-69.

E.     Zurich’s definition of “accidental”

       Having determined that Lennon does not control the case before us, we are left
to examine Zurich’s denial of benefits based on its interpretation of the term “accidental”
as not including drunk-driving wrecks. Our task is not to address whether that decision
was correct. Instead, the question before us is whether it was arbitrary and capricious.
We answer that question in the affirmative.
No. 08-4512         Kovach et al. v. Zurich Am. Ins. Co.                           Page 13


        The central focus of our review is whether Zurich’s interpretation of the term
“accidental,” as used in the Plan, was reasonable. See Morrison v. Marsh & McLennan
Cos., 439 F.3d 295, 300 (6th Cir. 2006) (stating that an administrator’s interpretation
of plan provisions will be upheld if it is reasonable). ERISA requires that benefit plans
must be “written in a manner calculated to be understood by the average plan
participant.” 29 U.S.C. § 1022(a).        Accordingly, “[i]n interpreting a plan, the
administrator must adhere to the plain meaning of its language as it would be construed
by an ordinary person.” Morgan v. SKF USA, Inc., 385 F.3d 989, 992 (6th Cir. 2004).
“[A]n insured should not have to consult a long line of case law or law review articles
and treatises to determine the coverage he or she is purchasing under an insurance
policy.” Walker v. Metro. Life Ins. Co., 24 F. supp. 2d 775, 780 (E.D. Mich. 1997)
(quoting Harrell v. Minnesota Mut. Life Ins. Co., 937 S.W.22d 809, 814 (Tenn. 1996)).

        1.      Ordinary meaning

        We have little doubt that an ordinary person would characterize Mr. Kovach’s
collision at the intersection to be an accident. Webster’s dictionary offers the following
pertinent definition of the word “accidental”:

        2 a: occurring unexpectedly or by chance b: happening without intent or
        through carelessness and often with unfortunate results
http://www.merriam-webster.com/dictionary/accidental. Mr. Kovach’s wreck clearly
fits this definition in that he did not “expect” or “intend” to hit another vehicle. Rather,
he “carelessly”—or, more accurately, negligently—ran a stop sign, with the “unfortunate
result” that he was injured in the ensuing collision.

        A hypothetical witness placing a 911 call to report Mr. Kovach’s crash would
almost certainly have reported that he or she had just seen an accident. Indeed, Zurich’s
own language throughout the administrative record reflects that Mr. Kovach’s wreck was
considered to be an accident in the ordinary sense of the word. In particular, the
company frequently referred to the crash as an accident in its own documentation
regarding the claim:
No. 08-4512         Kovach et al. v. Zurich Am. Ins. Co.                        Page 14


       Committee determined that the issue regarding which party was at fault
       for the accident which resulted in the Insured’s loss requires further
       clarification.
       [The Committee] deferred its decision pending receipt of clarification
       from the relevant law enforcement authorities regarding which party was
       at fault in the accident at issue.
       [The] claim is to be referred for legal opinion regarding the accident and
       alcohol involvement.
       Atty advised that dscepancies [sic] in records regarding cause of
       accident.
       Upon receipt of the medical records from Robinson Hospital and driving
       record, loss will be referred for legal coverage opinion, as the claimant
       was intoxicated at the time of the accident.
(Emphasis added.)

       2.      Zurich’s reliance on caselaw

       Zurich defends its interpretation of the word “accidental” almost entirely on the
basis that it relied on a body of caselaw holding that drunk-driving wrecks are not
accidents for ERISA purposes. But in this case, where Mr. Kovach’s intoxication and
the circumstances of his accident were by no means extreme (as they were in Lennon),
we conclude that Zurich was unreasonable in relying solely on caselaw to justify its
denial of benefits to the Kovaches. This court has held, in the ERISA context, that even
under the highly deferential arbitrary-and-capricious standard, courts have

       an obligation under ERISA to review the administrative record in order
       to determine whether the plan administrator acted arbitrarily and
       capriciously in making ERISA benefits determinations. This obligation
       inherently includes some review of the quality and quantity of the . . .
       evidence and the opinions on both sides of the issues. Otherwise, courts
       would be rendered to nothing more than rubber stamps for any plan
       administrator’s decision . . . . Even under the deferential review we will
       not uphold a termination when there is an absence of reasoning in the
       record to support it.
McDonald v. W.-S. Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003) (citation omitted).
Moreover, the cases Zurich relied upon in its denial of benefits—Jones v. Metropolitan
Life Insurance Co., 385 F.3d 654 (6th Cir. 2004); Nelson v. Sun Life Assurance Co. of
No. 08-4512         Kovach et al. v. Zurich Am. Ins. Co.                           Page 15


Canada, 962 F. Supp. 1010, 1012-13 (W.D. Mich. 1997); Walker v. Metropolitan Life
Insurance Co., 24 F. Supp. 2d 775, 780-81 (E.D. Mich. 1997); Miller v. Auto-Alliance
International, Inc., 953 F. Supp. 172, 175-77 (E.D. Mich. 1997); Cates v. Metropolitan
Life Insurance Co., 14 F. Supp. 2d 1024, 1027 (E.D. Tenn. 1996); and Fowler v.
Metropolitan Life Insurance Co., 938 F. Supp. 476, 480 (W.D. Tenn. 1996)—do not
uniformly support Zurich’s position.

        The only Sixth Circuit opinion cited in the denial letter, Jones v. Metropolitan
Life, did not even involve intoxication, and in fact supports the Kovaches. There, the
court concluded that MetLife acted arbitrarily and capriciously by interpreting the term
“accident” in a manner that excluded coverage where the plaintiff, a nurse, injured her
knee while bending down to administer first aid to a patient. It thus “added an eligibility
requirement [that the injury be caused by an external force or event] under the guise of
interpreting the term ‘accident’ that does not exist in either the Plan documents or federal
common law.” 385 F.3d at 659, 665. Further, in Walker v. Metropolitan Life, the
insured had a BAC of .22—substantially higher than Mr. Kovach’s .148—and was
driving at a high rate of speed when he crashed into a wall. 24 F. Supp. 2d at 777. And
the injured driver in Miller v. Auto-Alliance had a BAC of .29, 953 F. Supp. at 173,
while the insured in Fowler v. Metropolitan Life had a BAC of .26, 938 F. Supp. at 478.
Finally, the policy in Cates v. Metropolitan Life excluded injuries resulting from “the use
of any drug or medicine.” There, the administrator concluded in its denial letter that
“alcohol is considered by the medical community to be a drug.” 14 F. Supp. 2d at 1025.
No such exclusion is present in the Kovaches’ AD&D policy. The district court in
Cates, without providing any analysis, upheld the insurer’s denial of the claim on the
basis that the insured’s injuries were reasonably foreseeable at a BAC of .18 and
therefore nonaccidental. Id. at 1027.

        Zurich is essentially left with only two drunk-driving decisions involving facts
generally analogous to Mr. Kovach’s collision—Nelson v. Sun Life, 962 F. Supp. at 1013
(upholding the denial of benefits to an insured who was involved in a wreck while
driving with a BAC of .18), and Cates v. Metropolitan Life. But having to place all of
its eggs in the basket of these two lower court decisions (one of which, Cates, is
No. 08-4512        Kovach et al. v. Zurich Am. Ins. Co.                           Page 16


factually distinguishable because of the drug exclusion) to deny the Kovaches’ claim
was unreasonable in light of the decision in Harrell v. Metropolitan Life Insurance Co.,
401 F. Supp. 2d 802 (E.D. Mich. 2005), which reached the opposite result. There, the
insured died in a wreck and was found to have a BAC of .17. Id. at 805. The district
court rejected the plan administrator’s argument that the death was not “accidental,”
holding that, “to allow denial of benefits when a bad result is ‘reasonably foreseeable’
undermines a common conception of ‘accidental injuries,’ and therefore could violate
ERISA’s requirement that benefit plans be ‘written in a manner calculated to be
understood by the average plan participant.’” Id. at 812-13 (quoting 29 U.S.C.
§ 1022(a)).

       3.      The foreseeability of injury

       Zurich has offered no evidence whatsoever about the foreseeability of harm to
Mr. Kovach based on his BAC of .148. Perhaps the reason that it did not do so is that
its outright exclusion of alcohol-related collisions from its definition of “accidental” is
not born out by the statistics, as aptly summarized in the Lennon dissent:

       [A]ccording to the National Highway Traffic Safety Administration,
       17,105 people died in alcohol-related motor vehicle crashes in 2003, a
       figure that accounts for 40 percent of all traffic-related deaths that year.
       The Federal Bureau of Investigation’s 2003 Uniform Crime Report
       indicates that an estimated 1,448,148 motorists were arrested for driving
       under the influence that year. Finally, the Substance Abuse and Mental
       Health Services Administration, in a report issued September 2005,
       found an estimated 30.7 million persons nationwide took
       alcohol-impaired trips during 2003. Even assuming only 10 million
       alcohol-impaired trips occurred that year, a mere 14.4 percent of
       impaired motorists were arrested, while 0.17 percent died in
       alcohol-related incidents. Thus, injury or death most certainly cannot be
       deemed a “highly likely” consequence of driving while intoxicated. See
       West v. Aetna Life Ins. Co., 171 F. Supp. 2d 856, 904 (N.D. Iowa 2001)
       (“What ‘common knowledge’ should actually tell a person driving while
       intoxicated is that he or she is far more likely to be arrested for driving
       while intoxicated than to die or be injured in an alcohol related
       automobile crash, and far more likely to arrive home than to be either
       arrested, injured, or killed.”).
Lennon, 504 F.3d at 630 (Clay, J., dissenting).
No. 08-4512        Kovach et al. v. Zurich Am. Ins. Co.                            Page 17


       The Lennon dissent employed a conservative estimate of the number of drunk
drivers per year that was more than three times less than the actual estimate provided by
the Substance Abuse and Mental Health Services Administration. Using the full 30.7
million figure results in a death rate of only one-twentieth of one percent. These
statistics should not be taken as a dismissal of the tragic consequences of drunk-driving
wrecks; instead, they are intended to show only that the likelihood of serious injury or
death for each person who drives while intoxicated is something far less than
“reasonably foreseeable”—the standard used by Zurich in denying the Kovach’s claim.

       4.      Other risky activities

       We also note that Zurich’s definition of “accidental,” which excludes activities
that render the risk of serious injury “reasonably foreseeable,” would bar accidental
injury coverage in numerous situations in which the typical policyholder would expect
to be covered. For example, a driver who runs off the road while typing a text message
into a mobile phone would certainly consider himself or herself to have been involved
in an “accident,” and would therefore expect to be entitled to benefits under an
accidental-injury policy. But the New York Times recently reported on a Virginia Tech
study showing that text messaging increased a driver’s risk of collision by 23 times.
Matt Richtel, In Study, Texting Lifts Crash Risk by Large Margin, N.Y. Times, July 27,
2009. Moreover, a study of young drivers in England found that reaction times of young
drivers were reduced by text messaging three times more than by drinking alcohol to the
legal limit.   Helen Nugent, Texting While Driving Is More Dangerous than
Drink-Driving, London Times, September 18, 2008.

       A driver also substantially increases his or her risk of a collision by driving while
fatigued, see Lori Yerdon, Fatigued Driving Comparable to Drunk Driving, U.S. Army
Combat Readiness/Safety Center News Release, June 16, 2008, available at
https://safety.army.mil/LinkClick.aspx?fileticket=TpDV4aOpMas=&tabid=691; driving
at excessive speeds, see Synthesis of Safety Research Related to Speed and Speed Limits,
http://www.tfhrc.gov/safety/speed/speed.htm; and driving after taking certain over-the-
counter medications, notably antihistamines, opioids, and muscarinic antagonists,
No. 08-4512        Kovach et al. v. Zurich Am. Ins. Co.                           Page 18


see U.K. Dept. for Transport, Road Safety Report No. 24: Over-the-Counter
Medicines and the Potential for Unwanted Sleepiness in Drivers, available at
http://www.dft.gov.uk/pgr/roadsafety/research/rsrr/theme3/overthecountermedicinesa
ndth4772. (Note that we do not endorse the results of the cited studies; these citations
are included only to bolster the intuitive notion that the risk of driving can be
substantially increased when drivers engage in common activities that do not carry the
moral stigma of drunk driving.)

       If Zurich denied coverage for injuries involving the above factors on the basis
that they were not caused by an “accident,” we would likely conclude that its decision
was arbitrary and capricious in light of a typical policyholder’s expectations. We see no
reason not to reach the same conclusion based on the Kovaches’ legitimate expectations
in the present case.

       5.      Lack of a specific exclusion

       Zurich could have easily added an exclusion in the Plan for driving while
intoxicated if it had wished to do so, but it did not. The sheer number of court cases
nationwide involving disputes over claims by drunk drivers certainly would have put it
on notice that it would likely face claims under its AD&D policies based on injuries
sustained in alcohol-related collisions. Zurich did, however, include specific exceptions
for “skydiving, parasailing, hangglinding [sic], bungee-jumping, or any similar activity.”
But under the “reasonably foreseeable injury” standard that Zurich employed to deny the
Kovaches’ claim, these exclusions would be unnecessary and redundant because all of
the listed activities involve a reasonably foreseeable risk of injury. See Restatement
(Second) of Contracts § 203(a) (1981) (“[A]n interpretation which gives a reasonable,
lawful, and effective meaning to all the terms is preferred to an interpretation which
leaves a part unreasonable, unlawful, or of no effect.”).

       In effect, Zurich’s definition of the term “accidental” has added an eligibility
requirement (i.e., an exclusion) that is not in the Plan. Based on the facts of the current
case, that renders its interpretation of the Plan arbitrary and capricious. See Jones v.
Metro. Life. Ins. Co., 385 F.3d 654, 665 (6th Cir. 2004) (“In this case, MetLife added an
No. 08-4512        Kovach et al. v. Zurich Am. Ins. Co.                            Page 19


eligibility requirement under the guise of interpreting the term “accident” that does not
exist in either the Plan documents or federal common law; therefore, MetLife’s
interpretation of the Plan is arbitrary and capricious.”). We also note that to the extent
Zurich relied on the presence of drugs in Mr. Kovach’s blood samples to deny coverage,
where the record provides no basis to find that these drugs were present before the
accident, that reliance is a further indication of an arbitrary and capricious decision.

       6.      Wickman standard

       Given the varying interpretations of the word “accidental” that have been
employed by the district courts in this circuit, compare Nelson v. Sun Life Assurance Co.
of Canada, 962 F. Supp. 1010, 1013 (W.D. Mich. 1997) (applying a “reasonable
foreseeability” standard) with Harrell v. Metropolitan Life Insurance Co., 401 F. Supp.
2d 802, 812-13 (E.D. Mich. 2005) (applying a “highly likely to occur” standard), the
time is ripe for this court to adopt a uniform standard for determining whether an injury
is “accidental” in ERISA cases where the word is not otherwise defined in the applicable
policy. After giving this matter considerable thought, we adopt the key holding
announced in the seminal First Circuit case of Wickman v. Northwestern National
Insurance Co., 908 F.2d 1077 (1st Cir. 1990). This key holding consists of asking
“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. at 1088.

       As stated by the concurring opinion in Lennon,

       Wickman’s standard . . . is a high bar, and arguably many collisions
       involving a drunk driver would not meet it: as a number of courts have
       noted, the number of drunk driving arrests swamps the number of drunk
       driving injuries or deaths, making it difficult to conclude that an injurious
       collision is “highly likely to occur as a result” of driving while
       intoxicated.
504 F.3d at 625.

       The dissent, however, asserts that “[t]he combination of alcohol and Vicodin
made it even more likely that a traffic collision would occur, rendering Kovach’s
No. 08-4512         Kovach et al. v. Zurich Am. Ins. Co.                          Page 20


behavior all the more reckless.” (Dissenting Op. at 29) (emphasis added). Driving while
intoxicated concededly makes a collision “more likely” to occur than if the driver is not
intoxicated, but this does not mean that a collision under such circumstances is “highly
likely.” Solely for the purpose of illustration, and without any pretense of being
statistically accurate, let us hypothetically assume that a sober driver has a 1%
probability of a collision. By contrast, assume that driving while intoxicated results in
a 10% probability of a collision, leading to the conclusion that a collision is “more
likely” to occur while driving intoxicated.

       But to reach the level of “more likely than not,” the probability of an accident
would, by definition, have to be in excess of 50%. And because “highly likely,” which
is necessary under the Wickman standard to obviate Zurich’s liability for an accidental
injury, obviously means a good bit more probable than simply “more likely than not,”
one might contemplate a 75% or higher probability before the average person would be
persuaded that a collision was “highly likely” to occur.               So even if the
motorcycle/Vicodin factors relied on by the dissent made Mr. Kovach’s accident more
likely, that is not sufficient to meet the Wickman standard and thereby relieve Zurich of
its policy obligations.

       The dissent criticizes this analysis by citing Stamp v. Metropolitan Life Insurance
Co., 531 F.3d 84 (1st Cir. 2008), for the proposition that the “highly likely” standard is
not wedded to the “more likely than not” standard. (Dissenting Op. at 29 n.4) Stamp is
distinguishable from the present case, however, because the insured in Stamp, like the
insured in Lennon, was driving with a BAC of more than three times the legal limit.
Stamp, 531 F.3d. at 86. Thus, Stamp’s behavior was materially closer to the extreme
alcohol-related behavior at issue in Lennon than Mr. Kovach’s. This material distinction
in circumstances precisely meshes with a key point stressed by the majority opinion in
Stamp that

       courts have emphasized the decedent’s level of intoxication when
       determining that a plan administrator’s denial of benefits was
       reasonable. . . . We endorse this approach. The Wickman analysis does
       not require a categorical determination that all alcohol-related deaths are
No. 08-4512        Kovach et al. v. Zurich Am. Ins. Co.                           Page 21


       per se accidental or nonaccidental. Rather, it leads us to consider the
       circumstances of the fatal event in question.
Id. at 90-91 (internal citations omitted).

       We further believe that the Russian roulette example cited in Stamp and by the
dissent is inapposite because playing Russian roulette has zero social utility, whereas
using motorized transportation to move about has a very high level of social utility. In
sum, riding a motorcycle while “somewhat impaired” (as opposed to being “grossly
intoxicated”) may make an accident more likely to occur, but the risk of such an accident
is not so “overwhelmingly disproportionate” when compared to the social utility
involved, see id. at 93 (citation omitted), that an ordinary person would consider a
collision involving the impaired driver as nonaccidental.

       The solution for insurance companies like Zurich is simple: add an express
exclusion in policies covering accidental injuries for driving while under the influence
of alcohol, or for any other risky activity that the company wishes to exclude.
Policyholders would thus be able to form reasonable expectations about what type of
coverage they are purchasing without having to make sense of conflicting bodies of
caselaw that deal with obscure issues of contractual interpretation. Had Zurich included
such an exclusion in first place, this litigation would have been entirely unnecessary.

       7.      Conclusion

       Zurich’s decision to deny benefits to the Kovaches was contrary to the everyday
meaning of the word “accidental” as it would be understood by a typical policyholder,
and was based almost entirely on a body of largely distinguishable district court cases.
Further, Zurich’s estimation of the foreseeability of Mr. Kovach’s injuries is undermined
by statistics showing that the likelihood of a wreck for an individual driving at less than
extreme levels of intoxication is exceedingly small as a percentage of all such driving
expeditions, and arguably represents Zurich’s improper insertion of moral judgments
into its analysis of the Plan’s provisions. This observation is born out by the fact that
insureds would almost certainly expect to be covered for injuries resulting from many
No. 08-4512         Kovach et al. v. Zurich Am. Ins. Co.                           Page 22


other activities that are at least as risky as driving while intoxicated, such as driving
while text messaging or while sleep-deprived.

        In sum, Mr. Kovach’s injuries were not “highly likely to occur” as a result of his
intoxication, in contrast to the injuries that were highly likely to occur under the facts
in Lennon. Zurich’s interpretation of the Plan’s provisions amounts to an additional,
unwritten exclusion for all drunk-driving injuries, which is not permitted under even the
most deferential standard of review. For all of these reasons, we conclude that Zurich’s
denial of coverage based on Mr. Kovach’s injuries being nonaccidental was
unreasonable in light of the Plan’s provisions, and thus arbitrary and capricious. See
Morrison v. Marsh & McLennan Cos., 439 F.3d 295, 300 (6th Cir. 2006).

F.      The self-inflicted-wound exclusion

        The alternate explanation offered by Zurich for its denial of coverage to the
Kovaches was that Mr. Kovach’s injuries fell under the Plan’s self-inflicted-wound
provision. The relevant language provides that no benefits are payable if the loss is
“caused by or connected with . . . a purposeful self-inflicted wound.” Zurich reasons that
Mr. Kovach’s injury resulted from his intentional act of becoming drunk and operating
a motorcycle, and was therefore self-inflicted.

        The Eighth Circuit, sitting en banc, rejected an identical argument in King v.
Hartford Life & Accident Insurance Co., 414 F.3d 994 (8th Cir. 2004) (en banc). There,
the insured had died in a motorcycle accident with a BAC of .19. Id. at 997. That court
held, and we agree, that “[t]he most natural reading of the exclusion for injuries
contributed to by ‘intentionally self-inflicted injury . . .’ does not include injuries that
were unintended by the participant, but which were contributed to by alcohol
intoxication.” Id. at 1004. Although Mr. Kovach acted intentionally in drinking to
excess and then riding his motorcycle, nothing in the record indicates that he did so with
a mind towards harming himself. Zurich’s interpretation of the exclusion in question
conflates intentional actions with intentional results. Mr. Kovach’s injuries, in other
words, were the result of the collision, not simply a consequence of his acts of drinking
and driving. After all, “[o]ne rarely thinks of a drunk driver who arrives home safely as
No. 08-4512         Kovach et al. v. Zurich Am. Ins. Co.                              Page 23


an ‘injured’ party.” Id. Mr Kovach’s intoxication likely contributed to the collision, but
to define his excessive drinking as a “purposely self-inflicted wound” would be an
illogical and “startling construction.” Id. Zurich’s denial of the Kovaches’ claim on this
basis was therefore arbitrary and capricious.

G.      Appropriate proceedings on remand

        This leaves us with a choice as to the appropriate proceedings on remand. In
ERISA cases, appellate courts have the power either to send the matter back to the plan
administrator for further consideration or to make a final decision on the merits. Cook
v. Liberty Life Assurance Co., 320 F.3d 11, 24 (1st Cir. 2003) (“Once a court finds that
an administrator has acted arbitrarily and capriciously in denying a claim for benefits,
the court can either remand the case to the administrator for a renewed evaluation of the
claimant’s case, or it can award a retroactive reinstatement of benefits.”). This court has
frequently awarded benefits outright in lieu of a remand for reconsideration by the plan
administrator. See, e.g., Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 171 (6th Cir.
2007) (“[W]e find no need to remand this matter for additional consideration by LINA
because of our conclusion that Cooper has clearly established that she is disabled under
the Plan.”); Kalish v. Liberty Mut./Liberty Life Assurance Co., 419 F.3d 501, 513 (6th
Cir. 2005) (concluding that the appropriate remedy was an immediate award of benefits
rather than a remand to allow the plan administrator to consider evidence that it had
previously ignored).

        The case before us has no unresolved factual issues; instead, its resolution
revolves around the proper interpretation of the Plan provisions—a question of law that
we have answered in the Kovaches’ favor. Having determined that Mr. Kovach’s
collision falls within the definition of “accidental” and is not subject to the self-inflicted-
wound exclusion, we thus conclude that the proper disposition of this case is an award
of benefits to the Kovaches. See Canseco v. Constr. Laborers Pension Trust, 93 F.3d
600, 609 (9th Cir. 1996) (concluding that no remand is necessary where no new factual
determinations remain).
No. 08-4512       Kovach et al. v. Zurich Am. Ins. Co.                        Page 24


                               III. CONCLUSION

       For all of the reasons set forth above, we REVERSE the judgment of the district
court and REMAND the case for the entry of a judgment in favor of the Kovaches.
No. 08-4512         Kovach et al. v. Zurich Am. Ins. Co.                            Page 25


                                  __________________

                                       DISSENT
                                  __________________

        McKEAGUE, Circuit Judge, dissenting. I would affirm the district court’s
decision. The majority’s lengthy opinion raises many arguments that I feel compelled
to address but, ultimately, I view this as an unfortunate but fairly simple case. When
plaintiff-appellant Thomas Kovach decided to mount his motorcycle and drive it on
crowded roadways, with a blood alcohol content (BAC) nearly double the legal limit,
he engaged in high-risk behavior that made it reasonably foreseeable and highly likely
that he would be injured as a result of his choices. It was, therefore, not arbitrary and
capricious for defendant-appellee Zurich to determine that the ensuing traffic collision
was not accidental and to deny his claim.

        Initially, I emphasize that our review of this case is governed by the arbitrary and
capricious standard. The arbitrary and capricious standard requires this panel to uphold
the plan administrator’s decision, “if it is the result of a deliberate, principled reasoning
process and if it is supported by substantial evidence,” Baker v. United Mine Workers
of Am. Health & Ret. Funds, 929 F.2d 1140, 1144 (6th Cir. 1991), and if the decision is
“‘rational in light of the plan’s provisions.’” Jones v. Metro Life Ins. Co., 385 F.3d 654,
661 (6th Cir. 2004) (quoting Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381
(6th Cir.1996)). Furthermore, plan administrators have “great leeway in interpreting
ambiguous terms.” Moos v. Square D Co., 72 F.3d 39, 42 (6th Cir. 1995) (citing Cook
v. Pension Plan for Salaried Employees of Cyclops Corp., 801 F.2d 865 (6th Cir.1986)).
Despite paying lip service to the correct standard of review, the majority’s analysis
smacks of a much more rigid standard of review, and concludes with an impermissible
substitution of its judgment for that of the plan administrator.

        Furthermore, I find that the majority’s analysis overlooks two crucial factors:
(1) Kovach was driving a motorcycle at the time of the accident, an especially dangerous
form of transportation, and (2) it was not arbitrary and capricious for Zurich to conclude
No. 08-4512        Kovach et al. v. Zurich Am. Ins. Co.                           Page 26


that, in addition to having a BAC nearly twice the legal limit, Kovach was also
intoxicated on opiates at the time of the accident.

A. Zurich’s finding of opiate use

       Zurich’s decision to partially base its denial of Kovach’s claim on the conclusion
that Kovach was under the influence of opiates at the time of the traffic collision was the
result of a deliberate, principled reasoning process and was supported by substantial
evidence. (Administrative Record “A.R.” 58) (finding Kovach’s death not accidental
because it “was a reasonably foreseeable consequence of driving while highly
intoxicated and under the influence of drugs”). A number of considerations support
Zurich’s determination that Kovach was on opiates at the time of the traffic collision: (1)
the toxicology report showing a positive test for opiates, (2) evidence indicating Kovach
regularly used Vicodin prior to the traffic collision, (3) Kovach’s failure during Zurich’s
review of his claim to dispute Zurich’s findings or provide clarifying evidence. Kovach
cannot fail to dispute Zurich’s findings and then expect factual ambiguities in the record
to be resolved in his favor on appeal. See Perry v. Simplicity Eng'g, 900 F.2d 963, 966-
67 (6th Cir.1990) (noting that the primary goal of ERISA is to provide “a method for
workers and beneficiaries to resolve disputes over benefits inexpensively and
expeditiously” and concluding that the claimant had not presented sufficient evidence
on a key issue to the plan administrator until he was before the district court and,
therefore, that denial was proper); Marks v. Newcourt Credit Group, Inc., 342 F.3d 444,
457 (6th Cir. 2003) (“The scope of the district court’s and this court’s review of the
denial of benefits is limited to the administrative record available to the plan
administrators when the final decision was made.”).

       The administrative record shows that MetroHealth Medical Center tested
Kovach’s blood at the time of his admission, and the results were positive for opiates.
(A.R. 129). During the processing of his claim, Kovach did not deny or contest with
contrary evidence, Zurich’s finding that his use of opiates contributed to the collision,
No. 08-4512           Kovach et al. v. Zurich Am. Ins. Co.                                     Page 27


and that he was on drugs at the time of the traffic collision. (See A.R. 45-50).1 Instead,
it is only in his arguments before this court and the district court that Kovach now claims
that the opiates in his system were the result of drugs administered to him by medical
personnel after the traffic collision. (Appellant’s Br. at 6). The only evidence he cites
for this, and the only evidence in the administrative record, is the notation by
MetroHealth Life Flight personnel who took him from Robinson Memorial Hospital,
where he was initially admitted after the traffic collision, to MetroHealth. (A.R. 75, 129)
(the notation indicated that “morphine,” an opiate, was administered to Kovach during
the flight).

         However, there is documented evidence in the administrative record in the form
of Kovach’s admission report at MetroHealth, which Zurich had to consider and which
supports its determination that Kovach was on opiates at the time of the accident.
Kovach’s admission report from MetroHealth lists all of the medications that he was on
at the time he was admitted. This information was provided to medical personnel at
MetroHealth by Kovach, his family, or other medical personnel to enable them to
accurately treat him. The admission report clearly shows that, for months before the
collision, Kovach had been prescribed Vicodin–an opiate–with instructions to take it
every six hours. (A.R. 297, 85). The report also shows Kovach’s frequent refills of his
Vicodin prescription, including his most recent refill, just eighteen days before the
collision, and it certainly provided another reasonable explanation for the positive opiate
tests in his bloodstream and provided substantial evidence for Zurich to conclude that
Kovach was under the influence of opiates at the time of the collision. Id.

         The evidence in the record, when coupled with Kovach’s conduct before the plan
administrator substantiates the reasonableness of Zurich’s finding that Kovach was on
opiates at the time of the collision, and its decision to base the denial of his claim in part
on this factor. The use of even a legally prescribed opiate like Vicodin, in conjunction
with alcohol, made it even more reasonably foreseeable or highly likely that Kovach’s


         1
           In his response to the denial letter, Kovach’s lawyer does not once dispute that Kovach was on
opiates at the time of the accident. Furthermore, he attached an affidavit from Kovach to his response,
which also does not dispute that Kovach was on opiates at the time of the accident.
No. 08-4512           Kovach et al. v. Zurich Am. Ins. Co.                                     Page 28


ability to safely drive his motorcycle would be significantly impaired. See Physicians’
Desk Reference, 529-30 (63d ed. 2009) (“[Vicodin], like all narcotics, may impair the
mental and/or physical abilities required for the performance of potentially hazardous
tasks such as driving a car or operating machinery; patients should be cautioned
accordingly. Alcohol and other CNS [Central Nervous System] depressants may
produce an additive CNS depression, when taken with this combination product, and
should be avoided.”).           Hence, Zurich’s findings that Kovach voluntarily and
intentionally ingested opiates before driving his motorcycle reasonably supported its
conclusion that his claimed injuries were caused not by an “accident” but by deliberate
or reckless misconduct.

B.       Lennon

         Despite the fact that it was decided after Zurich denied Kovach’s claim, the
reasoning employed in Lennon, a closely analogous case, extends to this case. See
Lennon v. Metropolitan Life Ins. Co., 504 F.3d 617, 618-26 (6th Cir. 2007) (upholding
a plan administrator’s finding that a motorist’s high risk behavior while driving drunk
was not accidental and provided a valid ground to deny his beneficiary’s claim). The
majority endeavors to distinguish Lennon but, despite these efforts, the fact remains that
Kovach engaged in the same type of voluntary high risk behavior exhibited in Lennon;
behavior that meant it was not arbitrary and capricious for the plan administrator to find
that his traffic collision was not an accident. The majority finds particular significance
in the fact that Lennon’s BAC level was more than double Kovach’s BAC in this case.
However, Kovach’s BAC was still nearly double the legal limit at the time of his
admission to Robinson Memorial Hospital. Thus, like Lennon, Kovach was illegally
driving with a BAC well above the state presumption for intoxication.2 The BAC levels
have been set by the state legislature. It is the legislature, and not this court on a case
to case comparison method, that determines when someone is too drunk to drive. By


         2
           The majority cites the lead opinion in Lennon for the proposition that Lennon did not consider
cases like Kovach’s where the motorist is only “somewhat impaired.” 504 F.3d at 624. There is no basis
in the record to suggest that Kovach was only somewhat impaired. His BAC was nearly double the legal
limit. Furthermore, Zurich found that he was on opiates at the time. The issue reserved in Lennon seems
to cover drivers with a BAC much closer to or under the legal limit, and not on opiates.
No. 08-4512             Kovach et al. v. Zurich Am. Ins. Co.                                        Page 29


legislative judgment Kovach, like Lennon, was too drunk to drive. See Phelps v.
Positive Action Tool Co., 26 Ohio St. 3d 142, 145 (1986) (“The legislature, on the basis
of extensive research into the problem of drunken drivers, has determined and statutorily
established that a blood alcohol level of .10 percent has an adverse effect on an
individual's coordination and control and that an individual with that blood alcohol level
is incapable of safely operating a motor vehicle.”).3 Furthermore, Zurich reasonably
found that Kovach was on opiates when his collision occurred. The combination of
alcohol and Vicodin made it even more likely that a traffic collision would occur,
rendering Kovach’s behavior all the more reckless.4


         3
             Ohio has since lowered the BAC limit to .08%.
         4
           The majority engages in statistical speculation that the “highly likely” standard it adopts
“obviously means a good bit more probable than simply ‘more likely than not,’” and concludes that “one
might contemplate a 75% or higher probability before the average person would be persuaded that a
collision was ‘highly likely’ to occur.” (Majority Op. 20). While I understand that the majority undertakes
this analysis “without any pretense of being statistically accurate,” I don’t think that the “highly likely”
standard is wedded to the “more likely than not” standard. The First Circuit, which created the Wickman
test which the majority adopts, agrees:
         Moreover, the focus of our objective analysis in Wickman was not on the statistical
         probability that death would occur from the decedent's actions. Instead, we were
         concerned chiefly with what a reasonable person would perceive to be the likely
         outcome of the intentional conduct. Wickman, 908 F.2d at 1089. Russian roulette
         provides an archetypal example of this critical distinction. From a statistical standpoint,
         the likelihood of dying from a single round of Russian roulette is 16%-one in six. Such
         a death is not “highly likely” if that phrase is taken to mean “more likely than not” or
         “substantially certain.” In fact, those who play Russian roulette have a decent chance,
         statistically speaking, of not being injured. Lennon, 504 F.3d at 623. Nonetheless, such
         a death “would not be publicly regarded as an accident” because the mortal risk
         associated with playing Russian roulette is patently obvious to any reasonable person.
         Wickman, 908 F.2d at 1087. Similarly, even if Mrs. Stamp had adduced evidence that
         those who drive while extremely drunk have a better than even chance of arriving home
         safely, that evidence would not have been dispositive. Statistical analysis is simply not
         at the core of the Wickman analysis. Instead, as the Sixth Circuit has explained,
         Wickman's framework reflects that “at some point the high likelihood of risk and the
         extensive degree of harm risked, weighed against the lack of social utility of the activity,
         become not marginally but so overwhelmingly disproportionate that the resultant injury
         may be outside a definition of ‘accidental’ that is not unreasonably narrow.” Lennon,
         504 F.3d at 623. It was not arbitrary for the plan administrator here to conclude that Mr.
         Stamp's decision to drive while grossly intoxicated qualifies as overwhelmingly and
         disproportionately risky conduct.
Stamp v. Metro. Life Ins. Co., 531 F.3d 84, 89-90, 92-93 (1st Cir. 2008) (applying Wickman’s definition
of accidental in the context of a death resulting from driving while intoxicated and noting that “[a]pplying
Wickman, federal courts have, ‘with near universal accord,’ upheld plan administrators’ determinations
that ‘alcohol-related injuries and deaths are not “accidental” under insurance contracts governed by
ERISA’” (numerous citations omitted)). The majority argues that “playing Russian roulette has zero social
utility, whereas using motorized transportation to move about has a very high level of social utility.”
(Majority Op. 21). I agree that using motorized transportation to move about has a high level of social
utility. However, riding a motorcycle with a BAC nearly double the legal limit while on opiates does not.
(A.R. 454, 37) (noting that the accident occurred at approximately 7:30 p.m.). Furthermore, driving a
motorcycle with a BAC nearly double the legal limit while on opiates, significantly increases the likelihood
No. 08-4512            Kovach et al. v. Zurich Am. Ins. Co.                                       Page 30


          The majority also distinguishes Lennon by noting that, in addition to drunk
driving, the only other thing Kovach did out of the ordinary was drive through a stop
sign. In contrast, Lennon drove the wrong way up a one way street at a high rate of
speed. However, running a stop sign at a crowded intersection, like driving at a high rate
of speed up a one way street, is a voluntary illegal act. Thus, even though Kovach’s
activities were different from the activities of the claimant in Lennon, they were also
similar in that they were voluntary, high-risk illegal activities. Under Ohio law, driving
drunk (no matter how drunk) and driving through a stop sign (no matter how common
it is) are both illegal activities.

          In attempting to show that Kovach’s behavior was less risky then Lennon’s, the
majority ignores another voluntary decision that Kovach made, the decision to ride a
motorcycle while intoxicated. Both statistically and logically, a motorcycle is a more
dangerous form of transportation than a car. The National Center for Statistics and
Analysis released data on traffic safety showing that, “per vehicle mile traveled in 2006,
motorcyclists were 35 times more likely than passenger car occupants to die in a motor
vehicle traffic crash and 8 times more likely to be injured.” Nat’l Hwy. Traffic Safety
Admin., Nat’l Center for Statistics and Analysis, Traffic Safety Facts: 2007 Data (2008),
DOT HS 810 993, at http://www-nrd.nhtsa.dot.gov/Pubs/810993.PDF. Driving a
motorcycle is a voluntary decision that substantially enhances the risk of a death or
injury.

          When the decision to drive a motorcycle is coupled with the decision to drive
while intoxicated, the risk of an injury further increases. The National Highway Safety
Administration has published a report describing the increased risks of driving a
motorcycle, as compared to other motor vehicles, while intoxicated: “[f]or
example, 1 in 4 automobile driver fatalities in the United States were alcohol
related during 2005. In comparison, a higher proportion of motorcycle rider



of an accident, when contrasted with driving while not intoxicated. In this case, I believe that Kovach’s
decision to drive his motorcycle while intoxicated created a high likelihood of risk that, when weighed
against the lack of social utility of driving while intoxicated, was so overwhelmingly disproportionate that
the resulting injury was clearly outside a definition of accidental that is not unreasonably narrow.
No. 08-4512          Kovach et al. v. Zurich Am. Ins. Co.                         Page 31


fatalities (1 in 3) were related to alcohol in the same year.” U.S. Dep’t of
Trans., Nat’l Hwy. Traffic Safety Admin., Effects of Alcohol on Motorcycle
Riding     Skills:     Final     Report,     DOT      HS    810    877,    Feb.     2008,
http://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/Traffic%20Injury%20Control/Arti
cles/Associated%20Files/HS810877.pdf (finding also that impairing effects on riding
performance were evidenced at a BAC level of .08, the legal limit in Ohio). Thus,
Kovach’s decision to drive a motorcycle while intoxicated greatly enhanced the risk of
harm in a manner analogous to the facts presented in Lennon, and justified as reasonable
Zurich’s decision to deny his claim.

C.     Zurich’s definition of accidental

       Even apart from Lennon, Zurich’s decision cannot reasonably be deemed
arbitrary and capricious.      Under the arbitrary and capricious standard, the plan
administrator’s decision does not have to follow a particular test, rather the plan
administrator need only use a test that follows a deliberate, principled reasoning process.
See Lennon, 504 F.3d at 625 (“If the administrator's decision here were subject to the
district court’s de novo review, its rejection of these cases in favor of the stricter
standard advanced in Wickman (or some other standard entirely) might have been
appropriate. But when it reviews under an arbitrary and capricious standard, the district
court cannot simply substitute its judgment for that of the administrator” (Boggs, J.
concurring) (citing Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).).

       1. The Wickman standard

       Zurich based its decision to deny coverage on an interpretation of “accidental,”
the key term in the policy, that was not arbitrary and capricious. Although not obligated
to, Zurich already used a test that incorporated the Wickman standard the majority now
adopts and applies:

       Under applicable case law, an injury is accidental if it is neither
       subjectively expected nor objectively foreseeable. Jones v. Metro Life
       Ins. Co., 385 F.3d 654 (6th Cir. 2004). A death or injury is objectively
No. 08-4512            Kovach et al. v. Zurich Am. Ins. Co.                                        Page 32


         foreseeable if a reasonable person with a background and characteristics
         similar to the insured, would have viewed the resulting injury or death as
         substantially certain or highly likely to result from the conduct.
(Zurich’s denial letter; A.R. 58-59).5 This is, essentially, the same Wickman standard
that the majority adopts. Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077, 1088
(1st Cir. 1990) (the court looked first to the subjective “reasonable expectations of the
insured when the policy was purchased” and, if there is insufficient evidence on this
point, then the court looked to “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”). In fact, it is difficult to see how
“objectively foreseeable” (the term Zurich used to define the Wickman standard) and the
“reasonably foreseeable” language used throughout the denial letter are conflicting
standards. Instead, it appears that Zurich used objectively foreseeable as shorthand for
the objective prong of the Wickman standard and reasonable foreseeable as shorthand
for the combined objective and subjective prongs required by Wickman. Thus, the
phrase “reasonably foreseeable,” as used by Zurich, is practically equivalent to the
Wickman standard, combining both its subjective and objective prongs.

         Moreover, even if “reasonable foreseeable” is not a fair proxy for the Wickman
standard, the majority in Wickman concluded that, “[l]egally, ‘should have known’ is
synonymous with, if not even a higher standard than, the reasonable expectation
standard we promulgated above. Similarly, ‘substantially likely to occur’ is an
equivalent, if not tougher, standard to ‘highly likely to occur.’” 908 F.2d at 1089
(emphasis added). Thus, Wickman itself recognized that its standard could be expressed
in different words that represented an equivalent or higher standard. Again, it is difficult
to see how the reasonably foreseeable language Zurich used in its denial letter is a
different or lesser standard when compared to “should have known” or “substantially
likely to occur,” if it is different from the actual language of the Wickman standard
(substantially certain or highly likely to result from) to begin with. Furthermore, as


         5
           Indeed, in his appeal to Zurich from their denial, Kovach even criticizes Zurich for “incorrectly”
using the Wickman standard, which “the Sixth Circuit has not adopted” for the definition of accident.
(A.R. 46.)
No. 08-4512           Kovach et al. v. Zurich Am. Ins. Co.                       Page 33


emphasized above, the Wickman court labeled its test as “the reasonable expectation
standard.”      Logically, reasonable expectation is nearly identical to reasonably
foreseeable. Because Zurich applied an analysis that is similar to Wickman and used
terms either nearly identical to the Wickman standard or meant to be a shorthand for the
Wickman standard, its decision was not arbitrary and capricious.

       The cases that Zurich discussed in its denial letter also analyzed, cited to, or
relied on the Wickman standard in reviewing the decisions of plan administrators. See
Jones v. Metro. Life Ins. Co., 385 F.3d 654, (6th Cir. 2004) (analyzing Wickman and
describing it in terms similar to those used by Zurich); Nelson v. Sun Life Assurance Co.
of Canada, 962 F. Supp. 1010, 1012-13 (W.D. Mich. 1997) (analyzing and using
Wickman in deciding to uphold plan administrator’s denial of benefits); Walker v. Metro.
Life Ins. Co., 24 F. Supp. 2d 775, 780-82 (E.D. Mich. 1997) (upholding plan
administrator’s denial of claim after analyzing the facts under the controlling Wickman
standard); Miller v. Auto-Alliance Int’l, Inc., 175-77 (E.D. Mich. 1997) (citing to
Wickman); Cates v. Metro. Life Ins. Co., 14 F. Supp. 2d 1024, 1026-27 (E.D. Tenn.
1996) (relying on Wickman in upholding plan administrator’s denial of benefits); and
Fowler v. Metro. Life Ins. Co., 938 F. Supp. 476, 480 (W.D. Tenn. 1996) (relying on
Wickman in upholding plan administrator’s denial of benefits).

       Finally, applying the language from the Wickman standard to the facts of this
case, as the majority proposes to do, it is clear to me that Zurich’s decision was not
arbitrary and capricious. Kovach’s intentional choices, to drive a motorcycle, an
inherently dangerous type of transportation, while intoxicated on a mixture of opiates
and alcohol, and to drive through a stop sign, represented conduct that a reasonable
person would have viewed as highly likely or substantially certain to result in an injury.
Furthermore the Kovaches6 should not be deemed to have reasonably subjectively
expected that their disability insurance would cover such reckless behavior.




       6
           Kovach’s spouse purchased the insurance.
No. 08-4512           Kovach et al. v. Zurich Am. Ins. Co.                                     Page 34


         2.       Zurich’s reliance on case law

         Zurich also reasonably relied on federal case law in determining the meaning of
“accidental.”7 This case law provided a reasonable basis for Zurich’s denial of Kovach’s
claim and shows that Zurich’s decision was not arbitrary and capricious. All but one of
the many cases Zurich based its decision on dealt with injures to intoxicated motorists.
Moreover, of those cases that dealt with an intoxicated motorist, all of them upheld a
plan administrator’s decision to define accidental as excluding occurrences involving
driving with a BAC significantly over the legal limit. See Nelson v. Sun Life Assurance
Co. of Canada, 962 F. Supp. 1010, 1012-13 (W.D. Mich. 1997) (BAC of .18); Walker
v. Metro. Life Ins. Co., 24 F. Supp. 2d 775, 780-81 (E.D. Mich. 1997) (BAC of .22);
Miller v. Auto-Alliance International, Inc., 953 F. Supp. 172, 175-77 (E.D. Mich. 1997)
(BAC of .29); Cates v. Metro. Life Ins. Co., 14 F. Supp. 2d 1024, 1027 (E.D. Tenn.
1996) (BAC of .18); and Fowler v. Metro. Life Ins. Co., 938 F. Supp. 476, 480 (W.D.
Tenn. 1996) (BAC of .26). The majority focuses on the fact that the injured parties in
these cases had a BAC that was higher, to varying degrees, than Kovach’s in this case.
However, this distinction ignores the fact that Kovach, like each of the comparable
claimants, was driving illegally with a BAC well over the legislatively determined limit.
It was this key similarity, when coupled with the reasoning from these cases, that Zurich
relied on in deciding to deny coverage to Kovach. Furthermore, it was not arbitrary and
capricious for Zurich to conclude that, in addition to his high BAC level, Kovach was
also on opiates at the time of the collision. This factor enhanced Kovach’s level of
intoxication. As a result, the reasoning in each of these cases supports Zurich’s decision
to deny coverage.




         7
           Because I would find that Zurich was not arbitrary and capricious in deciding that Kovach’s
injuries were not the result of an accident, I do not consider whether his injuries resulted from a self-
inflicted wound.
No. 08-4512        Kovach et al. v. Zurich Am. Ins. Co.                           Page 35


       3.      Foreseeability of injury

       The majority criticizes Zurich for failing to provide information on the
foreseeability of harm to Kovach based on his specific BAC, which was nearly double
the legal limit. However, in criticizing Zurich, the majority overlooks the more
important point that Kovach did not contest that his high BAC and opiate use contributed
to the traffic collision, or even the degree of his intoxication. When Zurich based its
decision on Kovach’s level of intoxication, it was incumbent on Kovach to challenge
their determination. By failing to do so, Kovach essentially conceded that point.
Furthermore, since Kovach did not contest this point, Zurich had no reason to provide
additional evidence or argument establishing how intoxicated Kovach was and the
degree to which that contributed to his injury.

       4.      Ordinary meaning

       In an effort to discredit Zurich’s interpretation of the term accidental, the
majority provides an ordinary meaning of “accidental,” but a closer examination of the
ordinary or dictionary meaning of “accidental” does not reveal a single accepted
understanding. Instead, the ordinary meaning seems to establish that there is more than
one meaning of the word “accidental,” and that Zurich’s interpretation, even if not the
best, was certainly not an arbitrary and capricious interpretation. The majority accepts
the ordinary meaning of accidental to be “occurring unexpectedly or by chance” or
“happening without intent or through carelessness and often with unfortunate results.”
Kovach’s traffic collision was obviously unexpected in the sense that he clearly did not
actually expect it would happen; if he did, then hopefully he never would have driven
his motorcycle while intoxicated in the first place. But, to a third party observer–an
ordinary person–the fact that an intoxicated motorcyclist ran a stop sign, and that a
collision occurred after an intoxicated motorcyclist ran a stop sign would both probably
be expected, or at least sufficiently careless that unfortunate results would certainly not
be unexpected. Certainly an ordinary person would expect that, if one drives with a
BAC well above the legal limit, he or she should expect that a traffic collision would be
much more likely to occur, which is why there are laws against driving while
No. 08-4512         Kovach et al. v. Zurich Am. Ins. Co.                            Page 36


intoxicated. See Michigan v. Sitz, 496 U.S. 444, 451 (1990) (describing the well known
dangers and costs of drunk driving).

        Furthermore, to say that Kovach’s traffic collision happened by chance, without
intent, or through mere carelessness is to absolve Kovach of the responsibility the
ordinary person would certainly feel he had for the traffic collision. By driving a
motorcycle while intoxicated, Kovach engaged in more than merely careless behavior,
he intentionally chose to engage in grossly negligent or reckless behavior. Indeed, the
first definition of accidental listed in Webster’s dictionary, which the majority omits,
articulates the importance of assigning responsibility to Kovach’s decisions:

        1 : arising from extrinsic causes.

http://www.merriam-webster.com/dictionary/accidental.            This primary definition
captures the underlying sense of responsibility or, rather, the lack thereof that is
ordinarily associated with the term accidental. Something accidental is something
caused by external forces, or extrinsic causes, not something caused by personal
decisions. But Kovach’s injury was a result of his irresponsible choices, it was due to
his misconduct, and it was his fault. The police report established that he ran a stop sign
and the blood tests at the hospital showed that he was intoxicated. An ordinary person,
asked who was to blame for Kovach’s “accident,” would certainly assign the fault and
the responsibility to him and to his choices, not to extrinsic causes. In this case, his
personal choices to drive while intoxicated and to drive his motorcycle through the stop
sign caused the traffic collision, not the extrinsic or accidental causes (the other car, the
pavement, the weather conditions, etc.). In any event, it was certainly not arbitrary and
capricious for Zurich to follow this ordinary meaning, and to determine that Kovach’s
injuries were not caused by accidental means under the ordinary meaning or dictionary
definition of the word.

        5. Other risky activities

        The majority hypothesizes that this court would not permit a plan administrator
to find that injuries resulting from text messaging while driving, drowsiness while
No. 08-4512         Kovach et al. v. Zurich Am. Ins. Co.                          Page 37


driving, or driving after taking certain over-the-counter medications were not the result
of an accident. While I would wait for an actual case to determine what this court would
find, I note that these examples are not analogous to Zurich’s denial here because
Kovach was engaged in illegal activity: he drove his motorcycle through a stop sign with
a BAC nearly double the legal limit and while on opiates. In contrast, while unwise, it
would not have been illegal for Kovach to drive while text messaging, drowsy, or even
on most over-the-counter medications.

        6. Lack of a Specific Exclusion

        I agree that Zurich could have added a specific exclusion stating that injuries
resulting from driving while intoxicated would not be considered accidental, and this
would have obviated the need for this case. However, plan language will never cover
every conceivable situation, nor should it be expected to.            That is why plan
administrators, like Zurich, are given discretion to determine the meaning of plan
language in the first place. Furthermore, while Zurich did include specific exceptions
for “skydiving, parasailing, hangglinding [sic], bungee-jumping, or any similar activity,”
all of these activities are legal, unlike driving through a stop sign while intoxicated.

D.      Conclusion

        The majority adopts the Wickman standard and concludes that Zurich failed to
apply it in this case. If that were the case, then it seems that it would be appropriate to
remand and allow Zurich to reconsider its decision in light of Wickman. However, it is
clear that, although not required to, Zurich already applied the Wickman standard to the
facts of this case and that its decision to deny benefits was not arbitrary and capricious.
Consequently, I respectfully dissent from the majority’s opinion and would affirm the
district court’s decision.
